The right to a jury trial is guaranteed by the U.S. Constitution and is the cornerstone of the American criminal justice system. Indeed, the independence of citizen jurors has always been understood as an indispensable structural check on executive, legislative and even judicial power. And that independence has always entailed special consideration for acquittals, which are intended to have an unassailable finality.

Yet the federal criminal justice system provides for an end-run around that intended finality – and, thus, around the jury system itself – through the pernicious practice of “acquitted conduct sentencing,” which refers to the process, sanctioned by the United States Sentencing Guidelines themselves, of determining and imposing sentences based not only on the offenses of which defendants are convicted but also on the alleged criminal conduct of which they are acquitted – that is, found “not guilty.” Simply put, “acquitted conduct sentencing” is unjust and, as decried by Justice Antonin Scalia, has “gone on long enough.”

Today, though, new proposed legislation and a challenge before the U.S. Supreme Court have the potential to end “acquitted conduct sentencing” once and for all.

In September 2019 U.S. Senators Dick Durbin (D-Ill.) and Chuck Grassley (R-Iowa), who were the lead sponsors of the First Step Act, joined by Senators Patrick Leahy (D-VT), Thom Tillis (R-NC), Cory Booker (D-NJ), and Mike Lee (R-UT), introduced bipartisan legislation to the Senate – the Prohibiting Punishment of Acquitted Conduct Act of 2019 – that would end the practice of “acquitted conduct sentencing.” As described by Senator Grassley:

“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. A bedrock principle of our criminal justice system is that defendants are innocent until proven guilty. The use of acquitted conduct in sentencing punishes people for what they haven’t been convicted of. That’s not acceptable and it’s not American. Back in 2014, Justices Scalia, Thomas and Ginsburg all agreed, but weren’t able to hear the case and stop the practice. With this bill we will finally prohibit under federal law what many already find patently unconstitutional.”

Or, as Senator Durbin put it:

“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 for acquitted conduct. This practice is inconsistent with the Constitution’s guarantees of due process and the right to a jury trial, and our bipartisan bill would make it clear that this unjust practice is prohibited under federal law.”

The Prohibiting Punishment of Acquitted Conduct Act of 2019 would end the practice of using “acquitted conduct” to determine the length of any federal prison term by: (1) amending 18 U.S.C. § 3661 to preclude judges from considering “acquitted conduct” except for purposes of mitigation; and (2) defining “acquitted conduct” as including all acts for which an individual was criminally charged and adjudicated not guilty after trial in any federal, state or local court, or any acts underlying a criminal charge or juvenile information dismissed upon a motion for acquittal.

Additionally, a cert petition in Asaro v. United States — a particularly egregious example of “acquitted conduct sentencing” — is currently pending. It asks the Court to revisit United States v. Watts, 519 U.S. 148 (1997) (per curium), in which a divided Court held that the use of “acquitted conduct” at sentencing does not offend the Double Jeopardy Clause of the U.S. Constitution.

It is impossible to know whether the Prohibiting Punishment of Acquitted Conduct Act of 2019 will gain any legislative traction. The current administration, though, has expressed an interest in and desire to act on reform-minded criminal justice initiatives, as evidenced by the First Step Act itself.

Likewise, it is impossible to know whether the U.S. Supreme Court will grant cert in Asaro. That petition, though, does have the support (in the form of amicus briefs) of several heavy-hitter legal organizations, including the National Association of Federal Defenders, FAMM (Families Against Mandatory Minimums) and the Cato Institute. Also, at least two sitting Justices have expressed concern and doubt about “acquitted conduct sentencing.” Justice Brett Kavanaugh, while sitting on the U.S. Court of Appeals for the D.C. Circuit, testified before the U.S. Sentencing Commission that “I think acquitted conduct should be barred from the Guidelines calculation. I don’t consider myself a particularly softy on sentencing issues, but it really bothers me that acquitted conduct is counted in the Guidelines calculation.” He also wrote in United States v. Bell, 808 F.3d 926 (D.C. Cir. 2015) that “[a]llowing judges to rely on acquitted or uncharged conduct to impose higher sentences than they otherwise would impose seems a dubious infringement of the rights to due process and a jury trial.” Similarly, Justice Neil Gorsuch, sitting on the U.S. Court of Appeals for the Tenth Circuit, wrote in December 2014 that the role played by acquitted conduct in generating harsher sentences “rests in part on a troublesome foundation.”

Regardless of how it comes about, the time has come to end the unjust and unfair practice of “acquitted conduct sentencing.” Stay tuned to this space for future developments on the Prohibiting Punishment of Acquitted Conduct Act of 2019 and the Asaro cert petition.