Memo re Prohibiting Punishment of Acquitted Conduct Act
The Prohibiting Punishment of Acquitted Conduct Act would stop judges from sentencing defendants to months or years in prison for acquitted conduct, which should have never been allowed to begin with. Example: In our current justice system, if a person is charged with ten counts, they exercise their Constitutional right to a trial, the jury finds them Guilty on five counts but Not Guilty on the other five counts, at sentencing the judge can still sentence the defendant to years in prison even for the counts the jury found him NOT Guilty, known as “relevant conduct”. In essence, the judge is saying he/she knows better than the jury and can override their finding.
This is wrong and unfair. As Senator Chuck Grassley (R-IA) has said: “If any American was acquitted of past charges by a jury of their peers, then some sentencing judge down the line shouldn’t be able to find them guilty anyway and add to their punishment. A bedrock principle of our criminal justice system is that defendants are innocent until proven guilty. 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. Our bill will finally prohibit under federal law what many already find patently unconstitutional.”1
The reasoning for this practice is that the law requires a jury to convict beyond a reasonable doubt but allows a judge to impose sentencing enhancements based on the less demanding standard of preponderance of the evidence. This behavior is wrong. It disrespects and violates the Constitution which requires a greater level of proof, proof beyond a reasonable doubt, for all elements of an offense including mens rea, before a defendant can be punished criminally.
This judicial practice is an affront to the Fifth and Sixth Amendments to the Constitution which guarantee due process and the fundamental right to trial by jury as well as requiring proof beyond a reasonable doubt before punishment may be imposed for a criminal offense. It has been roundly criticized by practitioners, judges, and scholars. In one case, three defendants were convicted of possessing small amounts of crack cocaine, but were acquitted by the jury on conspiracy to distribute charges. Nevertheless, the judge increased their sentences based on them engaging in a conspiracy. Though the Supreme Court did not take the case, Justice Scalia, joined by Justice Ginsburg and Justice Thomas, stated that the practice of sentencing based on acquitted conduct “has gone on long enough” and constituted a likely violation of the Sixth Amendment.
Allowing acquitted conduct to be considered at sentencing also exacerbates the “trial penalty”, which is generally manifested in the significant difference in sentence between what a defendant receives via plea bargain and what his or her sentence would be if convicted at trial. This trial penalty has virtually eliminated the constitutional right to a trial in the federal system.2
The Prohibiting Punishment of Acquitted Conduct Act would finally put an end to this unfair and unconstitutional practice.
