Bipartisan Bill Seeks to End Judges Increasing Sentences for ‘Acquitted Conduct’

September 30, 2019 Updated: September 30, 2019

WASHINGTON—Bipartisan legislation was introduced in Congress last week that would end the practice of judges increasing criminal sentences based on conduct for which a defendant has been acquitted by a jury.

The bill comes as a legal challenge, based on the Fifth and Sixth Amendments, to the little-known practice that favors prosecutors was filed with the Supreme Court.

FAMM, founded as Families Against Mandatory Minimums, and the National Association of Federal Defenders filed a friend-of-the-court brief in Asaro v. U.S., which is before the Supreme Court. The court hasn’t yet decided if it will hear the case. Vincent “Vinny” Asaro is an alleged New York mobster and captain in the Bonanno crime family.

It’s unclear where the Trump administration stands on the issue as it hasn’t yet filed a brief in the Supreme Court case.

At present, federal judges are free to take into account “acquitted conduct” when sentencing defendants. This means when a defendant has been charged with multiple crimes but is, for example, only convicted of one crime, the judge may consider conduct underlying the unsuccessfully prosecuted allegations when deciding on a sentence to a crime for which the person was convicted.

“It’s a horrifying bug in the federal criminal justice system that doesn’t get nearly enough attention. Until now,” wrote Mike Riggs at Reason.

The practice is fundamentally unfair, Riggs argues, because if “a judge will consider at sentencing every offense the prosecutor charges, even if jurors don’t buy the prosecutor’s pitch, [that] essentially allows prosecutors to game the justice system.”

“They can charge a defendant with an offense they know they can prove beyond a reasonable doubt, and then charge more serious offenses, with tougher penalties, that they can’t prove. Even if jurors act responsibly by convicting only on charges proved beyond a reasonable doubt, and refuse to convict on the reach charges, the prosecutor still wins when the judge takes all the charges into consideration at sentencing.”

The legislation itself, introduced Sept. 26 and sponsored by Sens. Chuck Grassley (R-Iowa) and Dick Durbin (D-Ill.), is the proposed “Prohibiting Punishment of Acquitted Conduct Act of 2019.”

It would change the U.S. criminal code “to preclude a court of the United States from considering, except for purposes of mitigating a sentence, acquitted conduct at sentencing.” The legislation would “define ‘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.”

Grassley and Durbin explained the rationale behind their bill.

“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,” Grassley, who is president pro tempore of the Senate, said in a statement.

“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. … With this bill, we will finally prohibit under federal law what many already find patently unconstitutional,” Grassley said.

Durbin, who is Senate minority whip, said in a statement that allowing judges “to override a jury verdict of ‘not guilty’ by sentencing defendants for acquitted conduct … 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.”

Republican Sens. Thom Tillis (R-N.C.) and Mike Lee (R-Utah), and Democratic Sens. Patrick Leahy (D-Vt.) and Cory Booker (D-N.J.) have signed on as co-sponsors.

Koch Industries and some groups on the political right have endorsed the bill, including Americans for Prosperity, American Conservative Union, Americans for Tax Reform, FreedomWorks, Prison Fellowship, R Street Institute, and Right on Crime.

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