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October 23, 2019

Can you see any problems with "The Prohibiting Punishment of Acquitted Conduct Act"?

As we turn to discuss the (little discussed) Supreme Court ruling in US v. Watts upholding the constitutionality of the use of so-called acquitted conduct in the calculation of the sentencing guidelines, in bears remembering that US Sentencing Commission or Congress could seek to preclude the use of this conduct as a matter or guideline or statutory rule.  In fact, just last month, as detailed in this press release, "U.S. Senators Dick Durbin (D-Ill.) and Chuck Grassley (R-Iowa), the lead sponsors of the landmark First Step Act, today introduced the bipartisan Prohibiting Punishment of Acquitted Conduct Act of 2019, which would end the unjust practice of judges increasing sentences based on conduct for which a defendant has been acquitted by a jury."  Here is more from the release:

Along with Durbin and Grassley, the legislation is also cosponsored by Senators Patrick Leahy (D-VT), Thom Tillis (R-NC), Cory Booker (D-NJ), and Mike Lee (R-UT).

Our criminal justice system rests on the Fifth and Sixth Amendment guarantees of due process and the right to a jury trial for the criminally accused.  These principles require the government to prove a defendant’s guilt beyond a reasonable doubt to a jury.  Under the Constitution, defendants may be convicted only for conduct proven beyond a reasonable doubt.   However, at sentencing, courts may enhance sentences if they find, by a preponderance of the evidence, that a defendant committed other crimes.  The difference in those standards of proof means that a sentencing court can effectively nullify a jury’s verdict by considering acquitted conduct.

One prominent example of this unjust practice is the 2005 case of Antwuan Ball, who, along with his co-defendants, was convicted of distributing a few grams of crack cocaine, but acquitted of conspiring to distribute drugs.   Despite this, the sentencing judge held Mr. Ball responsible for the conspiracy, nearly quadrupling his sentence to 19 years.  Mr. Ball asked the Supreme Court to consider his case, but the Court denied the petition for the writ of certiorari.  Justice Scalia wrote a blistering dissent, joined by Justices Ginsburg and Thomas, noting that “not only did no jury convict these defendants of the offense the sentencing judge thought them guilty of, but a jury acquitted them of that offense.”  Scalia decried the practice, writing that, “this has gone on long enough.”

The Prohibiting Punishment of Acquitted Conduct Act would end this practice by:

  • Amending 18 U.S.C. § 3661 to preclude a court of the United States from considering, except for purposes of mitigating a sentence, acquitted conduct at sentencing, and
  • Defining “acquitted conduct” to include acts for which a person was criminally charged and adjudicated not guilty after trial in a Federal, State, Tribal, or Juvenile court, or acts underlying a criminal charge or juvenile information dismissed upon a motion for acquittal.

Do you think this statutory proposal works functionally to overturn the ruling in Watts at least for federal defendants? Do you see any possible problems administering this statutory change if it were to become law? And if acquitted conduct is worrisome, how about so-called dismissed or uncharged conduct (and do we need to worry that prosecutors will move to dismiss charges mid-case in order to avoid limits on sentence enhancements for acquitted conduct)?

October 23, 2019 in Offense Conduct | Permalink


I think the Prohibiting Punishment of Acquitted Conduct Act pretty squarely works to overturn the ruling in Watts for federal defendants. What has to be considered is that the Act only serves to limit what is publicly considered and vocalized during sentencing. The Act does nothing to prevent judges or juries from being biased by consideration of acquitted charges. Even if a defendant is acquitted on their first-degree murder charge, a Judge may think the decision was incorrect and, intentionally or not, increase the overall sentence for the charges which the defendant was found guilty. While the Act is a start to preventing consideration of acquitted charges, it is only a first step that pushes such consideration into the shadows.

If the Act is implemented, it will be interesting to see how prosecutors respond. It is entirely possible that prosecutors may begin to dismiss the charges brought mid-case to avoid the charges being acquitted and therefore not valid for consideration in sentencing. By and large, I have to hope that most prosecutors are only seeking to exact justice and achieve sentences that reflect the crimes that have been committed and for which there is a valid conviction. If such a problem were to come to bear however, it could easily be addressed by prohibiting consideration of dismissed charges during sentencing. The logic is much the same as that supporting the current Act. Where acquitted charges represent a finding that the defendant could not be found guilty beyond a reasonable doubt, a dropped charge similarly reflects a prosecutorial determination that for whatever reason the charge was not going to be successful. Following this logic, Congress’ next step could be to prohibit consideration of dismissed charges during sentencing if such a problem developed.

Posted by: Justin McCuen | Oct 28, 2019 11:27:10 AM

Terrific insights, Justin!

Posted by: Doug B. | Oct 29, 2019 5:30:45 AM

It would be an odd tactical decision for the prosecutor to dismiss a charge mid-case for the specific purpose of preserving the possibility of sentence enhancement. Particularly, it requires the calculation that the evidence is not strong enough for the jury to find guilt beyond a reasonable doubt but strong enough for the judge to find guilt by a preponderance. While more severe charges might help in plea negotiations, there is no need to actually bring the charges for the enhancement to be applied. In most cases, the prosecution will have a good idea of the evidence and what charges it will support before indicting. While new facts sometimes emerge as the case progresses, there is usually going to be a continuing evidentiary basis for the charges in a case. If the prosecutor thinks that there is at least a preponderance to support guilt, it would be a difficult calculation to say that it was not worth it to put the question to the jury.

What I find interesting is the need to include Rule 29 dismissals in the definition of acquitted conduct. How often does a judge dismiss a charge for insufficient evidence, then find that the preponderance of the evidence shows guilt? While there is technically still a reasonable doubt standard, the evidence is viewed in a light most favorable to the government. It may be technically possible to grant a rule 29 motion and still use the conduct for sentencing, but does it happen? I understand including these dismissals from a technical standpoint, but find it odd that there would be a need to include them.

Posted by: Adam C Kennett | Oct 30, 2019 3:52:09 PM

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