Acquitted. Then Sentenced.

Judges can sentence defendants for crimes of which a jury acquitted them. Tomorrow, the Senate can take a step toward ending this unjust practice.

Imagine being accused of robbery and murder, but ultimately being found not guilty by a jury of your peers. Now imagine that just two years later, you are indicted again for a wholly unrelated and less serious criminal offense. You voluntarily plead guilty, expecting to receive a fair sentence. The prosecutors, the probation office, and your defense lawyer all agree that current law sets an appropriate prison sentence ranging between 2.5 years to 3.5 years. 

Your case is then assigned to the same judge who presided over your first case. She sentences you to eight years in prison—more than double the highest end of the range that anyone else involved in the criminal legal system would have told you to expect. And when she does so, she explains that when she went back over her old notes from your first trial, she determined there is a 51% chance that you should have been found guilty of those crimes, so she’s ignoring the jury’s earlier verdicts and now basing your sentence for this crime on those past unproven crimes. 

If you think this describes what happens in a bad movie or under some authoritarian regime, you're wrong. This describes a real case, and the practice is known as acquitted conduct sentencing. 

Earlier this year, a bipartisan group of senators introduced legislation that will provide much-needed reform. Tomorrow, this bill, the Prohibiting Punishment of Acquitted Conduct Act, will face its first major hurdle: a Senate Judiciary Committee markup. 

The bill is a first step to addressing the many injustices caused by acquitted conduct sentencing. It will prohibit federal judges from increasing a person’s prison sentence for one offense on the basis of another offense for which a jury had found the person not guilty.

Perhaps the most apparent problem with acquitted conduct sentencing is that it erodes our system’s presumption of innocence and the fundamental principles of fairness and justice. Many lawyers and activists argue that it undermines the Sixth Amendment right to a jury trial—a pillar of the American criminal legal system, which requires that juries, not judges, determine the facts essential to a prison sentence. 

Yet acquitted conduct sentencing remains permissible in every federal court and a majority of state courts. While the actual number of impacted persons has yet to be quantified,¹ based on the number of federal appeals we know that the practice is widespread. At my organization, the Due Process Institute, our office mailbag is full of letters from those trapped behind prison walls who are serving sentences well past what their actual convictions should have brought them. 

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How is it that so many courts continue to bless this practice? 

In the 1997 case United States v. Watts, a jury convicted Vernon Watts of a drug crime but acquitted him of an offense involving a firearm. Despite the acquittal, the sentencing judge increased his prison term based on a determination that Watts had possessed guns by relying on a “preponderance of the evidence” standard—a standard lower than the “beyond a reasonable doubt” needed for criminal convictions and requiring only that the conduct be “more likely than not,” or 51% likely.

The case ended up at the Supreme Court, which determined that Watts’s extended sentence did not violate the Constitution's protection against double jeopardy, or being tried twice for the same crime. The court did not, however, determine if acquitted conduct sentencing violates the Sixth Amendment provision of the right to a jury trial. Thus, the question remains unanswered by the high court, which has resisted reviewing cases that would put the practice under the Sixth Amendment microscope. 

The most famous of these cases that the Supreme Court refused to review is United States v. Jones. A grand jury in 2005 had charged almost two dozen people with an alleged drug conspiracy. The government extracted guilty pleas from most of those accused, but a few exercised their right to a trial. In 2007, a unanimous 12-person jury acquitted these men in federal court of the most serious charges but convicted them for distributing what Justice Antonin Scalia later described as “very small amounts of crack cocaine.” Based solely on this crime, the sentencing guidelines recommended a range between two and six years. However, the judge, ignoring the jury’s rejection of the most serious charge, sentenced them in 2008 to 15 to 19 years’ imprisonment—two to three times the maximum recommended sentence for the crime they were convicted of committing. The 2014 opinion by the U.S. Court of Appeals for the D.C. Circuit upholding the sentence drew stinging criticism from then-Judge Brett Kavanaugh.

The case made even more headlines when the Washington Times published a letter from one of the jurors to the sentencing judge. The letter conveys a real-life evaluation of the practice from the point of view of a citizen:

“[W]e spent 8 months listening to the evidence…. We deliberated for over 2 months, 4 days a week, 8 hours a day. …  It seems to me a tragedy that one is asked to serve on a jury, serves, but then finds their work may not be given the credit it deserves. We, the jury, all took our charge seriously. We virtually gave up our private lives to devote our time to the cause of justice…. We listened, we thought, we argued…. Eventually, through every hour-long tape of a single drug sale, hundreds of pages of transcripts, ballistics evidence, and photos, we delivered to you our verdicts. What does it say to our contribution as jurors when we see our verdicts … not given their proper weight[?]” 

The letter is a moving reminder of how acquitted conduct sentencing subverts the role of the jury.

Some members of the Supreme Court have raised concerns. When a majority declined in April to review the appeal in Jones, Justices Scalia, Ruth Bader Ginsburg, and Clarence Thomas united to complain that the court’s silence regarding the constitutionality of acquitted conduct sentencing had “gone on long enough” and that it should “put an end to the unbroken string of cases disregarding the Sixth Amendment….” When Neil Gorsuch sat on the Court of Appeals, he questioned the constitutionality of judicial fact-finding at sentencing. And in a recent Supreme Court decision, Gorsuch, as a justice, wrote: “Only a jury, acting on proof beyond a reasonable doubt, may take a person’s liberty. That promise stands as one of the Constitution’s most vital protections against arbitrary government.”

The view that acquitted conduct sentencing is unconstitutional has also won support from lower court judges across the political spectrum. But the majority of the Supreme Court appears to remain unconvinced.

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Without Supreme Court action, we must look to Congress for a remedy. Thankfully, the legislative fix for this problem is relatively easy. Congress need only amend the law to explicitly exempt the use of acquitted conduct as a basis for increasing a person’s sentence. The congressional history of 18 U.S. Code § 3661—the part of the law dealing with the use of information for sentencing—indicates that the law was enacted to provide broad discretion to federal judges when considering information during sentencing. But it does not appear that the statute was explicitly enacted to permit the specific practice of acquitted conduct sentencing.

The political case for abolishing the use of acquitted conduct at sentencing should appeal to sensibilities on both sides of the political aisle. That’s why the Senate bill and a similar one in the House of Representatives have each received support from Democrats and Republicans. In an era in which such bipartisan agreement is increasingly rare, this is an opportunity for Congress to pass meaningful legislation that will make our justice system more fair and effective.

It’s time to put an end to acquitted conduct sentencing, and the Senate’s legislation is a good start. Tomorrow, the Judiciary Committee should vote to move this legislation forward unamended and allow it to come to the Senate floor for a vote.

Shana O’Toole is the founder and president of the Due Process Institute.

1. It is almost impossible to say how many people have been directly impacted by the practice since no entity in our federal legal system currently tracks that data. No judge in any of our 94 distinct federal judicial districts is required to document when he or she relies on acquitted conduct in their sentencing decision. And there is often inadequate documentation of acquitted conduct sentencing placed on the public trial record.