Menu
Close
DPI Commends the USSC’s Promulgation of an Amendment to Prohibit Acquitted Conduct Sentencing
April 17, 2024–Statement by Shana-Tara O’Toole, Founder and President of Due Process Institute, on the United States Sentencing Commission promulgating an amendment to prohibit acquitted conduct sentencing:
“We commend the United States Sentencing Commission (USSC) for unanimously promulgating an amendment today that prohibits the use of acquitted conduct when applying the Federal Sentencing Guidelines. This is undoubtedly a step in the right direction as acquitted conduct sentencing is a fundamentally unfair and unconstitutional practice that punishes defendants with lengthier sentences based on crimes they were never convicted of. We now hope Congress will adopt the amendment. If Congress chooses not to act, we look forward to the amendment’s effective date in November 2024.
However, the USSC’s amendment still does not prevent the courts from increasing sentences based on acquitted conduct under 18 USC § 3661. We urge Congress to pass the Prohibiting Punishment of Acquitted Conduct Act in order to rectify the dissonance between the USSC’s amendment and the broad federal statute that still allows for acquitted conduct sentencing.”
We Endorse the Prohibiting Punishment of Acquitted Conduct Act of 2023
September 14, 2023–Due Process Institute supported today’s reintroduction of bipartisan and bicameral Prohibiting Punishment of Acquitted Conduct Act of 2023 in the Senate (S. 2788) and House (H.R. 5430) that would end the federal practice of sentencing on the basis of conduct for which a jury has acquitted. We applaud Rep. Steve Cohen (D-TN-9), Rep. Kelly Armstrong (R-ND-At-Large), Sen. Dick Durbin (D-IL), and Sen. Chuck Grassley (R-IA) for their leadership on this important issue and we thank our many coalition partners for their support of this critical effort.
In short, this bipartisan bill would end the unjust practice of judges increasing sentences based on conduct for which a defendant has been acquitted by a jury. The Fifth and Sixth Amendment guarantee due process and the right to trial by jury but current federal law allows judges to override a jury’s not guilty verdict by sentencing a defendant for the very conduct a jury acquitted them of. Judges are allowed to impose these sentence enhancements because it only requires the preponderance of evidence, a less demanding standard than a jury’s standard to convict only beyond a reasonable doubt.
This practice has been roundly criticized by practitioners, judges, and scholars. Furthermore, allowing acquitted conduct to be considered in sentencing exacerbates the trial penalty, described as the significant difference in sentencing when a defendant accepts a plea bargain opposed to if they are convicted at trial. The trial penalty also contributes to coercive plea bargaining and the frequency of innocent people pleading guilty. Passing this legislation would help alleviate these problems, eliminate unjust practices, and strengthen the protections provided by the Constitution.
We Urge House Members to Vote to End Acquitted Conduct Sentencing
March 28, 2022–Due Process Institute led a bipartisan coalition calling on members of the House of Representatives to vote for the Prohibiting Punishment of Acquitted Conduct Act (H.R. 1621) and end the unjust practice of judges increasing sentences based on conduct for which a person has been acquitted (or found “not guilty”) by a jury.
The Fifth and Sixth Amendment guarantees of due process and the right to trial by jury are fundamental to our criminal justice system. These guarantees require the government to prove a person’s guilt to a jury beyond a reasonable doubt unless a person voluntarily pleads guilty. Despite this, current federal law allows judges to override a jury’s “not guilty” verdict by sentencing someone for the very conduct he or she was acquitted of by the jury. Permitting this kind of “acquitted conduct sentencing” is unjust, undermines due process, and subverts the critical function of jury trials in our legal system. It also contributes significantly to the phenomenon of people pleading guilty to crimes they did not commit—something that everyone wishes to prevent in our system.
Not surprisingly, the practice of acquitted conduct sentencing has been roundly criticized by judges and scholars from all backgrounds and political beliefs for many decades. In his dissent from the denial of certiorari in Jones v. United States (2014), Justice Antonin Scalia wrote, “This has gone on long enough.” Scalia was joined in his dissent by Justice Ruth Bader Ginsburg.
You can also read more on our #JuriesDecide campaign to end acquitted conduct sentencing here.
We Urge Congress to End Acquitted Conduct Sentencing
November 16, 2021–Due Process Institute and NACDL led a diverse coalition of organizations from across the political spectrum urging Chairman Jerry Nadler, Ranking Member Jim Jordan, and the House Judiciary Committee to pass the Prohibiting Punishment of Acquitted Conduct Act of 2021. In short, this bipartisan bill would end the unjust practice of judges increasing sentences based on conduct for which a defendant has been acquitted by a jury.
The Fifth and Sixth Amendment guarantee due process and the right to trial by jury but current federal law allows judges to override a jury’s not guilty verdict by sentencing a defendant for the very conduct a jury acquitted them of. Judges are allowed to impose these sentence enhancements because it only requires the preponderance of evidence, a less demanding standard than a jury’s standard to convict only beyond a reasonable doubt.
This practice has been roundly criticized by practitioners, judges, and scholars. Furthermore, allowing acquitted conduct to be considered in sentencing exacerbates the trial penalty, described as the significant difference in sentencing when a defendant accepts a plea bargain opposed to if they are convicted at trial. The trial penalty also contributes to coercive plea bargaining and the frequency of innocent people pleading guilty. Passing this legislation would help alleviate these problems, eliminate unjust practices, and strengthen the protections provided by the Constitution.
We Endorse Bipartisan Senate Bill to End Acquitted Conduct Sentencing
March 4, 2021–Due Process Institute supported today’s reintroduction of bipartisan legislation in the Senate (S. 601) that would end the federal practice of sentencing on the basis of conduct for which a jury has acquitted. We applaud Senators Durbin, Grassley, Leahy, Lee, Booker, and Tillis for their leadership on this important issue and we thank our many coalition partners for their support of this critical effort.
DPI President Published in The Hill: Amidst Impeachment, Focus on Acquitted Conduct Sentencing
October 1, 2019–The Hill published an opinion article by Due Process Institute President Shana O’Toole encouraging both chambers of Congress and both parties to turn their focus to abolishing acquitted conduct sentencing.
“Justice is not a partisan issue and every American wants a fair and effective criminal justice system. That requires respect for due process, restoring the primacy of the citizen jury, and adhering to the core principles of our Constitution. We applaud [Senators] Grassley and Durbin for leading the effort to reach across the aisle in a difficult political environment to affirm that Americans should not serve prison time for crimes they did not commit.”
DPI Endorses Landmark Bipartisan Legislation Abolishing Acquitted Conduct Sentencing
September 26, 2019–Statement of Due Process Institute President + Founder Shana-Tara O’Toole:
“Due Process Institute is proud to endorse the bipartisan Prohibiting Punishment of Acquitted Conduct Act of 2019 (S. 2566). The Act will abolish acquitted conduct sentencing in federal criminal cases and thus restore to the people, sitting together as a jury, the exclusive power to decide guilt or innocence.
In conjunction with the bill’s introduction, Due Process Institute has initiated a #JuriesDecide education, advocacy, and litigation campaign.