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US Senate leaders reintroduce “Prohibiting Punishment of Acquitted Conduct Act”

By Douglas Berman

I was pleased to see this new press release from the office of US Senator Charles Grassley reporting on a new effort to address federal acquitted conduct sentencing issues through statutory reform.  Here are excerpts from the release:

Sens. Chuck Grassley (R-Iowa) and Dick Durbin (D-IL), former and current chairman, respectively, of the Senate Judiciary Committee, reintroduced the Prohibiting Punishment of Acquitted Conduct Act of 2023. This bipartisan, bicameral legislation would end the unjust practice of judges increasing sentences based on conduct for which a defendant has been acquitted by a jury. Reps. Steve Cohen (D-Tenn.) and Kelly Armstrong (R-N.D.) introduced companion legislation in the House of Representatives.

“There’s no sense in punishing defendants for conduct they’ve already been acquitted for.” Grassley said. “Not only have three Supreme Court Justices agreed this practice is unconstitutional, but it also undermines a bedrock principle of American criminal justice: ‘innocent until proven guilty.’ Our bill seeks to permanently prohibit courts from considering past acquittals in new cases.”

“Under our Constitution, defendants can only be convicted of a crime if a jury of their peers finds they are guilty beyond a reasonable doubt. However, federal law inexplicably allows judges to override a jury verdict of ‘not guilty’ by sentencing defendants based on acquitted conduct. This practice is inconsistent with the Constitution’s guarantees of due process and the right to a jury trial,” Durbin said. “Our bipartisan, bicameral bill would make it clear that this unjust practice is prohibited under federal law.”

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. 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 a defendant committed other crimes. This is a different and lower standard of proof, which means a sentencing court could effectively nullify a jury’s verdict by considering acquitted conduct. 

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.

Bill text is available HERE.

Last year in a prior Congress, the US House overwhelmingly voted, by a margin of 405-12, in support of this legislation.  But the bill never got a Senate vote in the last Congress.  Especially with SCOTUS having recently dodged consideration of this issue, I hope the current Congress might be more inclined to move forward on this front.  I am not holding my breath (or really expecting much), but I am ever hopeful.

A few recent of many, many prior related posts: