Durbin Applauds Sentencing Commission's Unanimous Vote to Prohibit Acquitted Conduct from Being Used in Sentencing Guidelines

The announcement comes after Durbin, Grassley reintroduced their Prohibiting Punishment Of Acquitted Conduct Act

WASHINGTON – U.S. Senate Majority Whip Dick Durbin (D-IL), Chair of the Senate Judiciary Committee, today applauded the bipartisan United States Sentencing Commission’s unanimous vote to restrict conduct for which a person was acquitted in federal court from being used in calculating a sentence range under the federal sentencing guidelines.  The vote comes after Durbin and U.S. Senator Chuck Grassley (R-IA), along with U.S. Representatives Steve Cohen (D-TN-09) and Kelly Armstrong (R-ND-At-Large), previously introduced the bipartisan, bicameral Prohibiting Punishment of Acquitted Conduct Act of 2023.  This legislation would statutorily end the unjust practice of judges increasing sentences based on conduct for which a defendant has been acquitted by a jury. 

“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.  “That’s why I applaud the Sentencing Commission’s important step to limit the use of acquitted conduct.  This unjust practice must be 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.  These principles require the government to prove a defendant’s guilt beyond a reasonable doubt to a jury.  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, by the lower preponderance of the evidence standard, that a defendant committed other crimes.  The difference in those standards of proof means that a sentencing court can effectively nullify a jury’s verdict by considering acquitted conduct.

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.”

The Prohibiting Punishment of Acquitted Conduct Act would statutorily 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.