Sentencing Ethics: The Perplexing Relevance Of “Acquitted Conduct”

Senators Dick Durbin (D–Ill.) and Chuck Grassley (R–Iowa) introduced a bill this week that if passed and signed into law would  prohibit the use of so-called “acquitted conduct” at sentencing. What is acquitted conduct, you might ask? It is charges for which a defendant has been found not guilty that a sentencing judge nonetheless considers when sentencing that defendant for the crimes the jury says they did commit. This practice give prosecutors a special edge. Knowing that a judge may consider at sentencing every offense the prosecutor charges, a prosecutor can charge a defendant with an offense he knows he can prove beyond a reasonable doubt, and then charge more serious offenses that he probably can’t  prove. Even if jurors only reach a guilty verdict on the charges proved beyond a reasonable doubt, and refuse to convict on other charges, a judge can, and often does takes all the charges into consideration at sentencing.

“If any American is acquitted of charges by a jury of their peers, then some sentencing judge shouldn’t be able to find them guilty anyway and add to their punishment,” Grassley said in a statement released this week. “That’s not acceptable and it’s not American.” Under the law he is proposing with Senator Durbin, if a prosecutor charges you with five crimes, and the jury finds you not guilty of four of them, the judge who then sentences you should be able to consider only offense you were found guilty of.

What’s going on here? It is simply that the Federal sentencing rules currently allow a judge to consider crimes he or she believes the defendant is guilty of committing regardless of what the jury decided, just as a judge can take other factors into consideration. In such cases, a judge may use a preponderance of the evidence standard, not the criminal law standard of  beyond a reasonable doubt, to conclude that the jury was wrong and that a sentence should reflect conduct other than what the prosecution was able to prove to the jury’s satisfaction.

We know that O.J. did it, and so did the judge who sentenced him for a completely different episode involving burglary and kidnapping. That judge didn’t treat O.J. as a first offender. Was it wrong—un-American, in Grassley’s words— that O.J.’s sentence reflected the fact that he murdered two people and got away with it? I’m sure the Brown and Goldman families would call it “justice.” Al Capone was sent to prison for an unusual length of time for his tax evasion conviction, but everyone knows that the judge took into account the fact that he was a known mobster and murderer. Was that wrong?

I could make the argument that if a judge sits through the same trial the jury does and becomes convinced that the defendant is a much worse citizen than the mere verdict reflects, the judge should be able to  take those honest conclusions into consideration while sentencing. I could also make the argument that if a judge can’t consider charges not proven beyond a reasonable doubt to make a sentence harsher, the judge also shouldn’t consider unproven, speculative, subjective judgments  or undocumented virtues and mitigations to make the sentence more lenient. Maybe I should.

There are serial killers in prison who were only convicted of one or two murders, but whom law enforcement believes probably murdered many more. Should that enter into the sentencing calculations, or should they be based on the legal fiction that those other cases, now closed, were truly unsolved?  I don’t think that’s as easy a question as the advocates for the Durbin-Grassley bill would have us believe. The Cato Institute, Americans for Prosperity, the American Conservative Union, Americans for Tax Reform, Freedom Works, Prison Fellowship, the R Street Institute, Right on Crime, and Koch Industries, among other activist and professional groups from right and left on the political spectrum support it.

Judges are currently allowed to  calculate the applicable sentencing guideline range
for defendants by taking into account any uncharged, acquitted, and/or
unrelated conduct which the judge feels should affect a particular defendant’s
sentencing range, as well as other positive aspects of the defendant’s life deemed relevant by the judge. The utilitarian question is whether this flexibility leads to sentences that are better for society and that better reflect society’s verdict on the defendant.

The Prohibiting Punishment of Acquitted Conduct Act would amend the federal criminal code “to preclude a court of the United States from considering, except for purposes of mitigating a sentence, acquitted conduct at sentencing,” and it would “define ‘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.”

Jurisprudence has been trending away from the acceptance of acquitted conduct in sentencing for quite a while, as a Michigan court demonstrated in People v. Beck, a 2019 case. The court wrote in part,

The United States Supreme Court’s jurisprudence analyzing a defendant’s due-process and Sixth Amendment rights changed significantly after Jones v United States, 526 US 227 (1999), and Apprendi v United States, 530 US 466 (2000), which held that other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury and proved beyond a reasonable doubt….Reliance on acquitted conduct at sentencing violates due process based on the guarantees of fundamental fairness and the presumption of innocence, as several state courts and many judges and commentators have concluded. When a jury has made no findings regarding a defendant’s conduct, as in McMillan, no constitutional impediment prevents a sentencing court punishing the defendant as if the defendant engaged in that conduct using a preponderance-of-the evidence standard. But when a jury has specifically determined that the prosecution has not proved beyond a reasonable doubt that a defendant engaged in certain conduct, the defendant continues to be presumed innocent. The use of the preponderance-of-the-evidence standard in evaluating conduct that is protected by the presumption of innocence violates due process. Because the sentencing court punished the defendant more severely on the basis of the judge’s finding by a preponderance of the evidence that the defendant committed the murder of which the jury had acquitted him, it violated the defendant’s due-process protections….

On the law, I think that is right. Regarding the ethics of prohibiting  the consideration “acquitted conduct,” in sentencing I’m not as sure.

14 thoughts on “Sentencing Ethics: The Perplexing Relevance Of “Acquitted Conduct”

  1. This is interesting timing for a Democratic senator to introduce this legislation. I’ve only recently learned of this “acquitted conduct” consideration in sentencing during the trial of Paul Manafort, Jr. Commentators had thought that Manafort’s sentence might be pushed towards the higher end of statutory range even if he were acquitted on multiple charges as judged weighed the totality of his actions. I am mildly surprised that that outrage at Manafort’s rather scant sentence has not apparently deterred Durbin from pursuing this reform.

  2. Leaving aside charges for which the person was found not guilty will prior convictions, that is to say a person appears to be a habitual criminal, be out of bounds when making sentencing decisions?

    I would agree that factoring in charges for which the defendant was acquitted that has the effect of lengthening a sentence of a lesser guilty charge is wrong. I see horrendous problems with considering acquitted conduct especially along racial lines. I would like to see judges be able to consider past convictions but not aquittals in making sentencing decisions.

    • Chris Marschner,
      No, I don’t think anything here prevents prior criminal convictions to be used.

      Caveat to that statement:in my state, typically, a “Criminal History Score” is made up only of Felony-level convictions, though there are ways that lower-level crimes CAN increase it, but typically don’t.

      One related issue, I am also licensed to practice in Wisconsin, so there is something your Sconnie readers might find interesting. As compared to Minnesota law, Wisconsin law is always just a little bit different. It can be quite puzzling at times. But, what Wisconsin has is “reading in.” I think it only applies to plea deals, not acquittals, but if you are charged with 5 crimes and only plead to one, the prosecutor can “read in” the other charges for the Judge to consider in sentencing. I believe that it only occurs when there is a plea deal (gosh, I should ask a lawyer licensed there), but I think it can only be done so by agreement. So, it becomes part of the negotiating process. It is not automatic. But, if it something the parties agree to, I have no problem with it.

      This “Acquitted Conduct,” I think the law you quoted is absolutely right. Federal criminal law is punitive enough as it is.It should not be punishing you for things for which you are innocent on top of the already outrageous sentences allowed.

      As for the ethics, I think they should align with the law. The law typically allows a range for punishment. The Judge is allowed to exercise judgment within that range. Any consideration within that range should be appropriate, but not crimes that were not proven. For example, if OJ had been acquitted of intentional murder, but was convicted of 2 counts of criminal negligence in the storage of a deadly weapon, I would be perfectly fine with the Judge considering that his failure to store a knife properly ended up resulting in two deaths (sorry, it is really hard to turn OJ into a good hypothetical that does not come off sounding absurd), I would be fine with the Judge giving him the maximum possible sentence FOR THAT CRIME.

      Beyond that, sentencing rules might get very tricky and I don’t know enough about the federal guidelines to know if what I am suggesting completely negates itself when put in practice. What I mean by that is, while there are guidelines, there might also be rules about departing from the guidelines and whether offenses are sentenced concurrently or consecutively.

      To give an example, I have a client charged with four felonies. The maximum penalty on each is 10 years. Convictions on all four counts would lead to a stayed sentence of 18 months and 10 years of probation. There are rules about departing from the guidelines (making him serve 18 months in jail (a DISPOSITIONAL departure), or making him serve more than 18 months (a DURATIONAL departure)). And there is a whole ‘nother set of rules about making him serve consecutive sentences; in this case, news reports suggested he could go to jail for up to 40 years. Technically, that is true, if every single person involved in the process including me, the prosecutor, probation, the Judge,the Court of Appeals and the Supreme Court are idiots. I can only speak for myself.

      But, again, this is yet another example of why I hate comparisons of different criminal cases on Facebook. Laws differ between states, punishments differ, sentencing guidelines differ, and plea agreements can vary widely for a HUGE number of reasons.

      Well, that was quite a digression….


  3. I’m neither a judge nor a lawyer, and I have only been through one trial (as a JUROR; there was NO evidence for ANY of that other stuff!). So, I wonder, do judges routinely tell the newly convicted why they are piling on and assessing the maximum penalty? Do defense attorneys get to question the judge as to why a particular sentence was imposed? Wouldn’t a prudent judge stay mum about the reasons, so as to not open himself up to criticism or influence an appeal?
    Should the bill pass into law, I can see an ethical fail for a judge who considered acquitted verdicts, but claimed he did not. I also can see one more reason for judges to keep their sentencing reasoning to themselves.

  4. Of course, this law would only (immediately) affect federal courts, but I am curious about the consideration of “acquitted conduct” in the states. I know that in Tennessee (in jurisdictions where I have worked), a pre-sentence investigation report following a felony conviction and presented to the judge will include a defendant’s entire criminal history, not just past convictions or even just cases where the defendant was tried but acquitted. I’m not an attorney, never played one on TV and haven’t stayed in a Holiday Inn Express recently, but this would seem to have the same effect . Caveat: I’ve been retired for five years now and the law / case law may have changed.

      • I assume that all other factors based on observation or proven behavior would count because they are proven… whereas acquitted charges are clearly NOT proven.

        Even previous convictions make sense…repeat offenders SHOULD receiver a greater burden of punishment as they didn’t learn their lesson the last time.

        I don’t think the knowledge that an accused citizen is a great philanthropist, saver of abandoned puppies, and friend of the orphan should receive a lesser sentence for murdering their spouse (if duly convicted).

        But I don’t think a person convicted of murdering their spouse should be punished more because they were also accused (but acquitted) of kicking a dog.

  5. What I find interesting in the whole problem you have set forth has more to do with the entire idea of jurisprudence and judgment: the role that a judge and a legal system serves in a society.

    Because if it is recognize that a judge is a servant of society and the whole purpose of judgment is to benefit society by keeping it on a particular keel, then it must be accepted that a) if you have a good judge that judge will be understood to be good because s/he serves the core values of that society. What is ‘justice’ if it is understood at the outset that the object of judgment is to protect and benefit the society?

    What Chris said, above, is interesting:

    I see horrendous problems with considering acquitted conduct especially along racial lines. I would like to see judges be able to consider past convictions but not acquittals in making sentencing decisions.

    But the issue he speaks to is even more interesting than the relatively minor incidence through which it is brought up. In an homogenous culture, and one where social values are agreed on and shared, everyone in general functions in accord with codes and values. They can be taught — they are taught — and they are not contested and society is not a battleground of conflict. But in a society — now I refer to America — which has become 1) vast in size and 2) tremendously mixed, we notice that conflict arises because people do not agree in relation to fundamental value-categories, and out of this all sorts of different conflicts show themselves.

    The obvious one, which Chris alludes to, is that of the ‘injustice suffered by Blacks at the hands of an oppressive society and social structure’. But before that can be approached and understood it first has to be investigated and defined. In essence, Blacks cannot adapt and often do not adapt to the ‘white structures’ or to ‘European values’. So, they develop rebellious strategies that show themselves in many many different ways, not the least being in (it has been said, and some have tried to prove it) in greater criminality.

    So, in that situation, if we understand that the judge’s purpose is to protect society, and the general social value is toward a civil mores that is Anglo-American and European (as it certainly was up until the period of increased demographic shift mid-twentieth century), then the role of a judge is really sort of a social activist: a guardian of defined, and accepted, values.

    But anyone who has watched, say, Gideon’s Trumpet or Twelve Angry Men, and has paid any attention at all to the rebellion and radicalism that developed great force in the Sixties, can easily see that a) we are not agreeing anymore about what ‘social stability’ should be, nor what ‘justice’ is and should be, and that b) factions are developing in which ‘justice’ is defined very very differently. We need only refer to the Michael Brown case. Two radically opposed cultures have radically opposed notions of what ‘justice’ is.

    But that is just one particularly overt area of social and value-conflict. There are quite a number of them now. Race and ‘oppression’ is one area. Sexuality and sexual orientation is another. Gender is one that has relatively recently pushed itself to the front. What about the conflict between economic development and progress when it is confronted by environmental activists and ‘climate change’ activism? Who will adjudicate these conflicts? and according to what set of values? The more that I think about it the more that this list can go on & on & on. It is almost endless.

    Let us suppose that in a given time and place — say San Francisco when it first became a haven for that sort of sexual perversion — let us suppose that the surrounding culture was of the agreement that in no sense and in no way would some part of the city be allowed to transform itself into a Sodom (to use a dramatic, polemical word). They would naturally elect judges who would not only adjudicate points of law, whatever they happened to be, but would extend their judgments, as a form of social control, as a form of social activism ‘for the betterment of society’, to be sure that the law dis-favored those homosexuals as they set up shop so to speak. If that had been the case, and if there had not been social permissiveness and a specific ‘transvaluation of values’ as was the case in SF, that horrifying situation would never have developed as it did. Because the Judge would have been doing his or her job.

    You can go right down the line here, extending this example to hundreds and thousands of different instances. Our Present — this distorted, corrupt present — has been constructed, over time, through negligence and permissiveness on the part of those who *should* have been capable of holding to *proper value-definitions*. Meaning, there was a relaxation of specific value-definitions. Or, new sets of value-definitions vied for influence and, for many different reasons (social engineering and behind-the-scenes rigging as perhaps it should be said) has resulted in our Manufactured Present.

    So, please, tell me how to define ethics within this confused state of affairs? ‘Ethics’ only means what some people, in some given place and time, decide on as their ‘shared values’. Ethics do shift with time and time’s changes, but in no sense must we assume — can we assume — that they shift for the better. It would be more prudent to admit that in fact they devolve.

    This post of Jack’s actually illumines a problem that has had me somewhat conflicted and *stymied*.

    [Originally, a golf ball obstructing one’s line of play; perhaps akin to Scots stymie, person with poor vision (perhaps from styme, in to se nocht ane styme, not to see a glimmer (of something).]

    The social values of a culture, the defined moral substructure, must be agreed on. If they are not that society is in conflict and social struggle will result and will continue until it is resolved (in one way or another). Therefore, if one can accurately define the social value, and in the best case if it is really & truly agreed on, then the role of Judge is to enforce that order no matter what. It does not matter if the judge exceeds his or her powers or *guidelines*. What matters is whether what he or she has done has resulted in social benefit . . . or not.

    A system of laws if and when it became pernicious to the agreed social values, if and when it showed itself as operating against these, would require to be challenged. I think that this would have to be extended all the way up to the very top: to Constitutional law. And I think I can cite and instance: Lincoln’s suspension of those laws of Constitutional protection in a time of national crisis. But of course you would have to be a partisan to Lincoln’s project — defeating a rival and avoiding a whole host of problems — in order to feel that by his suspension of the Constitutional law that he served ‘the greater good’.

    You would have to control the very definition of ‘greater good’.

    There is a Dissident Movement which is challenging the assertions and declarations and ‘belief-system’ of Liberal culture: of what ‘liberalism’ has turned into, which really has tyrannous aspects and could, if things got a bit rougher, show a very ugly and violent side (which has always been inherent in American culture and perhaps in the American psyche or psychology).

    If the challenge ever developed strength and if it could or did *assert itself* it would do so extra-judicially, if the present permissive, liberal system were understood to be what it opposed: the reigning value-system. In this sense, any shift or evolution in law is always proceeded by law-breaking, isn’t it? When once sodomy was illegal and punishable (this is just an easy example) now the law not only protects that act but nearly any and all forms of (erstwhile defined) sexual deviance. And law ‘pushes’ so to speak the illegal and unlawful act into the domain of the permissible. It advocates.

    But to turn against the ‘transvalued value’ means, as I think it is easily seen, to ‘break with the established law’: to be lawless or disobedient.

    So, in our present, the Dissident Right is seen — and naturally must be seen — as an intrusion of evil and something that must be combatted and suppressed.

    This encapsulates the core of the problem that we face in our present, according to my understanding.

  6. “any fact that increases the penalty for a crime beyond the prescribed statutory maximum”
    1. How can any penalty beyond the statutory maximum not be against the eighth amendment, i.e. “nor cruel and unusual punishments inflicted.

    2. Although from the little that I’ve looked at the O.J. Simpson case leads me believe that you are right about his guilt, how many times have judges, prosecutors etc. ‘known’ that a defendant was guilty and have been wrong?

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