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October 24, 2020

Just what is "acquitted conduct" sentencing and is it a really big problem or really no big deal?

To start the final week of October, we will turn to discuss the (insufficiently 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.  I would like us in class (and here in the comments) to explore just what "acquitted conduct" is and whether it should be a big concern.  As I will note in class, the Michigan Supreme Court last year grappled with this issue (as noted here) and decided that "once acquitted of a given crime, it violates due process to sentence the defendant as if he committed that very same crime."  The state of Michigan appealed this ruling to SCOTUS, but (as noted here) the Supreme Court declined to reconsider this issue.

Watts was a federal sentencing case, and it bears remembering that US Sentencing Commission or Congress could seek to preclude the use of "acquitted conduct" as a matter or guideline or statutory rule for the federal system.  In fact, just last year, 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, 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 need we worry that prosecutors will move to dismiss charges mid-case in order to avoid limits on sentence enhancements for acquitted conduct)?

Why do you think this bill was not introduced until 2019, more than two decades since Watts?  Why do you think this bill, despite having notable bipartisan support, has not yet made any progress in Congress?  Is it important to have this issue prioritized in future federal sentencing reform bills or do you consider this matter of only marginal concern?

October 24, 2020 in Guideline sentencing systems, Supreme Court rulings, Who decides | Permalink


Why the two decade wait? My guess is that there was no consensus to reform because of the politically dangerous concern of politicians to be labelled as soft on criminals, especially those who have been repeat offenders. Now there is rising political support for ending the era of "mass incarceration," so the proponents suggested a modest change. These changes seem like small potatoes and unlikely to produce much reform if adopted as written.

However, if the bill came to committee it would be negligent not to consider the additional issue of dismissed or uncharged conduct. After that, it would be only natural to question why any sentence should go beyond the crime committed and the guilty verdict.

A change in law that the "punishment should fit the crime" and not past behavior or predictions of future conduct would mean that much current sentencing laws would be sent to the scrap heap. The good senators who introduced these changes may have hoped for more support by focusing on such a small focused reform, but the other senators must see the danger that small changes could lead to a wider discussion and more radical solutions which they are not ready to enter unless there is wide public demand for change. It seems, there is just not an effective lobby for convicted criminals

Posted by: Gary Josephson | Oct 25, 2020 1:50:08 AM

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