Sentencing Commission Proposes Restricting Judges' Use of Acquitted Conduct

It may sound bizarre, but yes, you can be punished at sentencing for an offense you were acquitted of by a jury.

The U.S. Sentencing Commission released proposed amendments to federal sentencing guidelines last week that would, among other things, limit judges' ability to enhance defendants' sentences based on conduct they were acquitted of by a jury.

It may sound bizarre and antithetical to what everyone is taught about the U.S. justice system, but defendants can be punished for crimes even when a jury finds them not guilty of the charges. At the sentencing phase of a trial, federal judges can enhance defendants' sentences for conduct they were acquitted of if the judge decides it's more likely than not—a lower standard of evidence than "beyond a reasonable doubt"—that the defendant committed those offenses. What this does in practice is raise defendants' scores under the federal sentencing guidelines, leading to significantly longer prison sentences.

For example, Reason covered the case of Dickie Lynn, a former Florida Keys drug smuggler who was convicted and sentenced to seven life sentences, thanks to the use of acquitted conduct by the judge and a stiff recommendation from federal prosecutors. Lynn was the only defendant out of the 21 charged in the sprawling drug conspiracy who was sentenced to life in prison. The judge added points to Lynn's score under the federal sentencing guidelines for being the leader of the drug enterprise, which he was acquitted of, and possessing a firearm, which he was also never convicted of.

The Sentencing Commission's proposal would amend the federal sentencing guidelines to limit judges from considering acquitted conduct at sentencing unless the conduct was either admitted by the defendant during a guilty plea or found beyond a reasonable doubt. The sentencing guidelines are not binding, but federal judges are required to at least consider them and explain their reasoning if they deviate from them.

The issue has raised outrage among Congress, criminal justice advocacy groups, and even the federal judiciary. Critics argue that such sentences violate defendants' Fifth and Sixth Amendment rights.

For the past several years, bipartisan bills have been introduced in Congress to ban the use of acquitted conduct at sentencing in federal trials, but none have passed.

"A bedrock principle of our criminal justice system is that defendants are innocent until proven guilty," Sen. Chuck Grassley (R–Iowa), who co-sponsored the legislation, said in 2021. "The use of acquitted conduct in sentencing punishes people for what they haven't been convicted of. That's not acceptable and it's not American."

A petition is also currently pending before the Supreme Court in another case involving acquitted conduct, Dayonta McClinton v. United States. Reason's Billy Binion reported: 

In 2015, when he was 17, Dayonta McClinton and five accomplices robbed a CVS pharmacy in Indiana at gunpoint. Federal prosecutors also alleged that McClinton shot and killed one of his accomplices, Malik Perry, during a dispute after the robbery. A jury convicted McClinton of robbing the pharmacy and brandishing a gun during that crime but acquitted him of robbing and killing Perry.

U.S. District Judge Tanya Walton Pratt nevertheless granted the government's request that McClinton serve time for causing Perry's death. Taking into account his prior criminal record, the sentencing guidelines recommended a prison term of 57 to 71 months for the convictions. McClinton instead received a sentence of 228 months—19 years. Pratt said Perry's murder was "the driving force in this sentence."

Binion notes that 17 retired federal judges, appointed by both Republicans and Democrats, also filed a brief supporting McClinton's appeal. The case has also attracted amicus briefs from Americans for Prosperity Foundation, the Due Process Institute, and the Cato Institute. The Cato Institute's brief argues that "permitting sentencing based on acquitted conduct not only denies criminal defendants their Sixth Amendment right to a jury trial, but also denies the community their proper role in overseeing the administration of criminal justice."

Although the Court's conservative majority is frequently hostile to expanding the rights of criminal defendants, McClinton's case may cut across the Court's usual divisions. In 2015, future Supreme Court Justice Brett Kavanaugh, then a judge for the U.S. Court of Appeals for the D.C. Circuit, wrote that the use of acquitted conduct "seems a dubious infringement of the rights to due process and to a jury trial."

The Justice Department did not immediately respond to a request for comment.