Prohibit Acquitted Conduct Sentencing

The right to a trial by jury is a bedrock principle of our justice system, one enshrined in the Constitution. Juries serve as a crucial, independent check on legislative, executive, and judicial power, and their decisions should be final. But in some instances, a jury’s decision to acquit someone of a crime can be disregarded by judges at sentencing. That practice, often called “acquitted conduct sentencing,” occurs when a judge bases a sentence not only on a charge that led to a person’s conviction, but also on behavior underlying charges for which that individual was acquitted. The high-profile case Jones v. United States best illustrates the injustice that can be wrought by acquitted conduct sentencing. In Jones, three defendants were charged with distributing small amounts of crack cocaine and conspiring to distribute larger amounts of the drug. The jury, using the required standard of guilt beyond a reasonable doubt, convicted the men on the distribution charge but acquitted them on the conspiracy charge. Despite that split outcome, the judge concluded from a preponderance of evidence that the defendants had, in fact, engaged in the charged conspiracy. Essentially defying the jury’s finding, the judge then handed the men dramatically longer sentences than they would have faced for distribution alone. There is growing jurisprudence for restricting acquitted conduct sentencing at both the state and federal levels. The Michigan Supreme Court recently held that considering acquitted charges when sentencing for a different charge violates due process. Policymakers have taken up the issue as well. Three bills introduced in recent years—the Jobs and Justice Act and the SAFE Justice Act in 2018 and the Prohibiting Punishment of Acquitted Conduct Act in 2019—sought to exclude acquitted conduct from consideration during sentencing. In the absence of action by the courts or Congress, the U.S. Sentencing Commission should weigh in. The Task Force recommends that the Commission use its existing authority to amend federal sentencing guidelines to preclude the practice of acquitted conduct sentencing and restore the constitutional authority of the jury.


The U.S. Sentencing Commission should amend the federal sentencing guidelines to preclude federal courts from considering acquitted conduct in determining the applicable sentencing guideline range.

Annotated Citations

Johnson, Barry L. “The Puzzling Persistence of Acquitted Conduct in Federal Sentencing, and What Can Be Done About It.” The Suffolk University Law Review, vol. 49, no. 1, 2016. This article examines the use of acquitted conduct in three distinct federal sentencing regimes: “under the discretionary sentencing regime of the pre-Guidelines era, under the era of binding Guidelines, and under the current regime of advisory Guidelines.” Ultimately, the article concludes, “use of acquitted conduct is a poor sentencing practice, inconsistent with a number of important sentencing policies and process interests.” Criticizing the current advisory Guidelines era as lacking true discretion in sentencing and instead representing a “hybrid regime” that is “coercively advisory,” the article suggests that “the [U.S. Sentencing] Commission’s ability to restrict sentencing judges’ use of information in sentencing is substantially diminished under the advisory regime.” Congress possesses the authority to pass legislation prohibiting the consideration of acquitted conduct. However, Congress should avoid adopting overly broad legislation by narrowly tailoring its action to exclusively prohibiting acquitted conduct considerations in sentencing, as opposed to attempting to legislate wider criminal reforms.

Elrinder, Peter. “ ‘Doing Time’… After the Jury Acquits: Resolving the Post-Booker ‘Acquitted Conduct’ Sentencing Dilemma.” Southern California Review of Law and Social Justice, vol. 18, no. 1, Fall 2018. In the lower courts, the application of discretionary judicial fact-finding to enhance sentencing has created a convoluted body of case law. Several circuit courts of appeal have issued strongly worded dissents or concurrences taking issue with acquitted conduct consideration at sentencing. This lack of uniformity in the lower courts is based on the appreciation of the “inherent conflict between the Sixth Amendment and judicial discretion in sentencing.” Because different courts have applied competing doctrines, criminal defendants can be subjected to vastly different sentencing procedures based simply on the region in which they were charged.

Doerr, Mark T. “Not Guilty? Go to Jail. The Unconstitutionality of Acquitted-Conduct Sentencing.” Columbia Human Rights Law Review, vol. 41, no. 1, Fall 2009. After the Supreme Court’s decision in United States v. Booker, which rendered the Sentencing Guidelines advisory as opposed to mandatory, above-Guidelines-range sentences began to be imposed “at a rate double that of the rate before Booker.” The advisory directive did little to solve the acquitted-conduct controversy because “reviewing courts [still] give significant weight to the Guidelines’ recommendations.” In fact, the Fourth Circuit, in United States v. Ibanga, held that judges cannot categorically exclude acquitted conduct during sentencing. Acquitted conduct can be considered at sentencing as long as it has been shown by a preponderance of the evidence, a far lower evidentiary threshold than the “beyond a reasonable doubt” standard required for conviction. This lower burden of proof contravenes the spirit and safeguards imposed on criminal trials by the Fifth and Sixth Amendments to the United States Constitution.

Yalincak, Orhun Hakan. “Critical Analysis of Acquitted Conduct Sentencing in the U.S.: ‘Kafka-esque,’ ‘Repugnant,’ ‘Uniquely Malevolent’ and ‘Pernicious?’ ” Santa Clara Law Review, vol. 54, no. 3, 21 Aug. 2014. This article examines the theories underlying criminal punishment, concluding that permitting enhanced sentencing based on acquitted conduct undermines both the retributivist and utilitarian theories of punishment. In the first instance, while “retributivist [theories of punishment] do not support the notion of sentencing based on character,” consideration of acquitted conduct in sentencing is premised upon a character assessment. Second, because utilitarian theories are not limited to criminal law but instead seek to maximize social welfare, the individually tailored sentencing enhancements, which flout broader utilitarian concerns of due process and the right to a jury trial, ultimately belie utilitarian punishment theories. By permitting acquitted conduct consideration at sentencing, which defies every principle theory of punishment, we allow for enhanced sentencing without a redeemable justification and weaken the criminal justice system writ large.

Foster, Michael A. Judicial Fact-Finding and Criminal Sentencing: Current Practice and Potential Change. Congressional Research Service, 24 August 2018. The current Guidelines permit courts “to find facts at sentencing that were not proved to a jury and use those facts in calculating the sentencing range … potentially increasing the ultimate sentence.” Several Justices on the U.S. Supreme Court have issued opinions questioning the constitutionality of this process. For example, “[i]n a 2014 dissent from the denial of certiorari in Jones v. United States, Justice Scalia (joined by Justices Ginsberg and Thomas) argued that judicial fact-finding justifying a sentence that would be unreasonable but for the judge-found facts may run afoul of the Sixth Amendment.” Justice Neil Gorsuch cited to this dissent (while serving as a judge at the Tenth Circuit Court of Appeals) in United States v. Sabillon-Umana, calling the practice of enhancing sentences based on judicial fact-finding alone constitutionally “questionable.” So too has Justice Brett Kavanaugh criticized this practice, writing (while serving as a judge on the D.C. Court of Appeals) in United States v. Bell 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 to a jury trial.” In fact, Congress has shown interest in altering this practice. Two recently introduced bills (H.R. 4261 and H.R. 5785) propose to amend 18 U.S.C. § 3661 by adding the following language to the statute: “except that a court shall not consider conduct of which a person has not been convicted.”