U. S. Senators Dick Durbin and Chuck Grassley have proposed bill to prohibit federal criminal sentencing based on acquitted conduct. The Senators have introduced the Prohibiting Punishment of Acquitted Conduct Act of 2019. The Act would end the practice of judges increasing federal criminal sentencing based on conduct for which a defendant has been acquitted by a jury.
“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.”
Senator Chuck Grassley
In the past, Supreme Court Justices Thomas, Scalia, and Ginsberg have attempted to address the problem, but were not able to hear the case that would stop the federal criminal sentencing practice.
The bill recognizes that the federal criminal justice system rests on the Fifth and Sixth Amendment guarantees of due process and the right to a jury trial. A criminal defendant should be punished only for those acts that they have been convicted of beyond a reasonable doubt.
Presently, a federal court can sentence a criminal defendant based not only on the crime for which they have been convicted, but may also consider other criminal acts for which the defendant has not been charged or convicted. The federal court may use the other acts for federal sentencing purposes if they find by a preponderance of the evidence that a defendant committed other crimes. This practice is all the more unfair because it uses a lower and different standard of proof. for a criminal conviction, the proof must be beyond a reasonable doubt. For federal criminal sentencing, the proof to a judge at a sentencing hearing is only a preponderance of the evidence, meaning that it is more likely than not. This standard is sometimes referred to as a 51% standard.
In a press release, the Senators highlighted one particular example of the practice; the 2005 case of Antwuan Ball. Ball and his co-defendants were convicted of distributing a few grams of crack cocaine, but they were acquitted of conspiring to distribute drugs. Despite the acquittal, the federal judge sentencing Ball held him responsible for the conspiracy. This finding nearly quadrupling Ball’s sentence, moving it up to 19 years.
The Prohibiting Punishment of Acquitted Conduct Act would end this federal criminal sentencing practice by amending 18 U.S.C. § 3661 to preclude a federal court from considering acquitted conduct at sentencing, except for purposes of mitigating (reducing) a sentence. The Act would also define “acquitted conduct” to include acts for which a person was criminally charged and adjudicated not guilty after trial or acts underlying a criminal charge or dismissed upon a motion for acquittal.
The bill, Senate bill S. 2566 was introduced in September. Please check back on this page for updates later in the Congressional Term.
