Sentencing Commission Again Proposes Restricting Judges' Use of Acquitted Conduct

Judges can sentence defendants for charges they were acquitted of by a jury, a practice that troubles criminal justice advocates, civil liberties groups, and several Supreme Court justices.

A government panel could soon limit a little-known but outrageous practice that allows federal judges to enhance defendants' sentences based on conduct a jury acquitted them of.

The U.S. Sentencing Commission published proposed amendments to federal guidelines on December 14 that include three potential options to restrict judges' ability to use acquitted conduct at sentencing—a practice that a wide range of civil liberties advocates say is antithetical to the principles of the American justice system.

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.

Mary Price, general counsel of the criminal justice advocacy group Families Against Mandatory Minimums (FAMM), said the use of acquitted conduct "erodes public confidence in our legal system. Ending it would enhance the public trust in and legitimacy of our criminal courts."

The Justice Department opposed a previous proposal by the Sentencing Commission, a bipartisan panel tasked with updating the voluminous federal sentencing guidelines, to limit acquitted conduct.

"Curtailing courts' discretion to consider conduct related to acquitted counts would be a significant departure from long-standing sentencing practice, Supreme Court precedent and the principles of our guidelines," Jessica Aber, the U.S. attorney for the Eastern District of Virginia, testified before the commission in February.

The Justice Department did not immediately respond to a request for comment on the new proposals.

The practice has troubled not just civil liberties groups but also many jurists, including several current Supreme Court justices. In 2015, 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 Supreme Court had a chance to address the issue earlier this year when it considered taking up the case Dayonta McClinton v. United States.

As Reason's Billy Binion reported, the plaintiff in that petition, McClinton, was charged with robbing a CVS pharmacy in Indiana at gunpoint and killing one of his accomplices during a dispute after the robbery. A jury convicted McClinton of robbing the pharmacy but acquitted him of killing his accomplice. A federal judge nevertheless used the accomplice's death to enhance McClinton's sentence from the 57 to 71 months recommended under the guidelines to 228 months.

McClinton's Supreme Court petition attracted amicus briefs from Americans for Prosperity Foundation, the Due Process Institute, and the Cato Institute. The Cato Institute's brief argued 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."

However, the Court ultimately decided not to take up the case. Reuters reported in June that four of the justices signaled they would defer to the Sentencing Commission. Justice Sonia Sotomayor said "This court may need to take up the constitutional issues presented" if the commission does not act soon.

For the past several years, Sens. Chuck Grassley (R–Iowa) and Dick Durbin (D–Ill.) have also drafted legislation to ban the use of acquitted conduct at sentencing in federal trials—the latest introduced in September—but none have passed.

"There's no sense in punishing defendants for conduct they've already been acquitted for," Grassley said in a September press release. "Not only have three Supreme Court Justices agreed this practice is unconstitutional, but it also undermines a bedrock principle of American criminal justice: 'innocent until proven guilty.' Our bill seeks to permanently prohibit courts from considering past acquittals in new cases."