WASHINGTON – 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.
 
Background:
 
One prominent example of this unjust practice is the 2005 case of Antwuan Ball, who, along with his co-defendants, was convicted of distributing a few grams of crack cocaine, but acquitted of conspiring to distribute a much larger quantity of drugs. Despite this, the sentencing judge held Mr. Ball responsible for the conspiracy, nearly quadrupling his sentence to 19 years. Mr. Ball asked the Supreme Court to consider his case, but the Court denied the petition for the writ of certiorari. Justice Scalia wrote a blistering dissent, joined by Justices Ginsburg and Thomas, noting that “not only did no jury convict these defendants of the offense the sentencing judge thought them guilty of, but a jury acquitted them of that offense.” Scalia decried the practice, writing that, “this has gone on long enough.”
 
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