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.