U.S. Sentencing Commission Restricts Federal Judges' Ability To Use Acquitted Conduct at Sentencing

The little-known but outrageous practice allowed judges to enhance defendants' sentences using conduct a jury acquitted them of.

Federal judges will be limited from enhancing defendants' sentences based on conduct a jury acquitted them of, a practice that has drawn condemnation from a wide range of civil liberties groups, lawmakers, and jurists.

The U.S. Sentencing Commission, a bipartisan panel that creates guidelines for the federal judiciary, voted unanimously Wednesday to adopt an amendment prohibiting judges from using acquitted conduct when calculating a defendant's sentencing range under those guidelines. The only exception is if the conduct "also establishes, in whole or in part, the instant offense of conviction."

"Not guilty means not guilty," U.S. District Judge Carlton W. Reeves, the chair of the Sentencing Commission, said in a press release. "By enshrining this basic fact within the federal sentencing guidelines, the Commission is taking an important step to protect the credibility of our courts and criminal justice system."

Although it sounds antithetical to what everyone is taught about the American justice system, at the sentencing phase of a trial, federal judges could enhance defendants' sentences for conduct they were acquitted of if the judge decided it was more likely than not—a lower standard of evidence than "beyond a reasonable doubt"—that the defendant committed those offenses. This raised defendants' scores under the federal sentencing guidelines, leading to significantly longer prison sentences.

For example, Reason's Billy Binion reported on the case of Dayonta McClinton, who 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 57–71 months recommended under the guidelines to 228 months.

McClinton filed a petition to the Supreme Court challenging the use of acquitted conduct at his sentencing, but despite several Supreme Court justices previously expressing doubt about the constitutionality of the practice—including Justices Brett Kavanaugh and Clarence Thomas—the Court declined to take up the case last June. Reuters reported that four of the justices signaled they would defer to the Sentencing Commission.

The Justice Department opposed a previous proposal by the Sentencing Commission to limit the use of 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 last February.

The Justice Department declined to comment on the new policy.

The practice also outraged members of Congress. For the past several years, Sens. Chuck Grassley (R–Iowa) and Dick Durbin (D–Ill.) have introduced legislation to ban the use of acquitted conduct at sentencing in federal trials, but so far none have passed.

In a statement today, Durbin continued to call for the passage of his and Grassley's Prohibiting Punishment of Acquitted Conduct Act, saying "this unjust practice must be prohibited under federal law."

"Under our Constitution, defendants can only be convicted of a crime if a jury of their peers finds they are guilty beyond a reasonable doubt," Durbin said. "However, federal law inexplicably allows judges to override a jury verdict of 'not guilty' by sentencing defendants based on acquitted conduct. This practice is inconsistent with the Constitution's guarantees of due process and the right to a jury trial. That's why I applaud the Sentencing Commission's important step to limit the use of acquitted conduct."