Abolishing Acquitted Conduct Sentencing

How is it that a jury can find a person accused of a crime "not guilty" but that same defendant can be sentenced for that crime anyway? 

This is the problem of acquitted conduct sentencing-- 

a practice the Due Process Institute wants to end.

Defining the Problem

What is Acquitted Conduct Sentencing?

“Acquitted conduct sentencing” is a practice that allows federal judges to sentence defendants based on charges for which a jury found them to be not guilty. It is a flagrant violation of numerous due process rights enumerated in the Constitution. Jurists across the ideological spectrum—from the late Justice Scalia to Justice Ginsburg—have condemned the practice for many years, but the Supreme Court has repeatedly failed to accept an appeal that would review the constitutionality of the practice. 

Abolishing acquitted conduct sentencing is a top priority of the Due Process Institute. We are currently working on substantial research that will help advocates quantify and understand this issue better.  Stay tuned to this page for new scholarship about the practice of acquitted conduct sentencing at both the federal and state levels!

We urge legislators on both sides of the aisle to bring this unfair and unconstitutional practice to an end before more Americans are sentenced to decades in a prison cell on the basis of unproven allegations that juries have heard and purposefully rejected.

The Due Process Institute is grateful to work with many diverse allies who support the #JuriesDecide education, advocacy, and litigation campaign as part of a broad coalition and through their own efforts!

Learn More

What do Justices Scalia, Stevens, Ginsburg, Thomas, Gorsuch, Kavanaugh 

and a DC juror have in common? 

Learn more about Juror #6 and the injustice that occurs when we don't let 


Landmark Bipartisan Criminal Justice Reform Bill Introduced


The Due Process Institute applauds Senators Durbin and Grassley for once again serving as lead sponsors of a landmark bipartisan criminal justice reform bill, as well as co-sponsors Senators Leahy, Lee, Booker, and Tillis, for putting their political differences aside and working together for the good of the country to introduce the Prohibiting Punishment of Acquitted Conduct Act of 2019 (S. 2566).  

#BipartisanWorks  #JuriesDecide


We are grateful for the support of our allies in endorsing this legislation!

  #Cut50; ALEC Action; Aleph Institute; ABA; ACLU; American Conservative Union; Americans for Prosperity; Americans for Tax Reform; Digital Liberty; Drug Policy Alliance;  Fair Trials; Faith and Freedom Coalition; FAMM; Federal Public & Community Defenders; Freedomworks; Innocence Project; Koch Industries; NACDL; National Legal Aid and Defender Association; Prison Fellowship; R Street Institute; Right on Crime; The Sentencing Project; Texas Public Policy Foundation; and Tzedek Association.


Statement in Support of Legislation from DPI's Founder + President

Understand the Bipartisan Bill

Prohibiting Punishment of Acquitted Conduct Act (S. 2566)


The Due Process Institute supports amicus efforts to abolish acquitted conduct sentencing

Cabrera-Rangel v. United States, No. 18-650

Brief in Support of Petition for a Writ of Certiorari in the U.S. Supreme Court 

(petition for certiorari denied on January 14, 2019) 

 Asaro v. United States, No. 19-107

Brief in support of Petition for Certiorari in the U.S. Supreme Court

(petition for certiorari currently pending)



"The Appeal" Highlights Problem of Acquitted Conduct Sentencing

Criminal justice reform news website "The Appeal" covered the issues of acquitted conduct sentencing, explaining the practice, why it's wrong, and the latest news about the bill the Due Process Institute is supporting.

"Although this is a problem that will come as news to some, it is the rare one that can (and might) be remedied."

Former MD Governor: Acquitted Conduct Should Not Be Considered At Sentencing

Robert Ehrlich, former governor of Maryland, writes in Law360 that acquitted conduct sentencing is wrong and that federal law is in need of serious reform. 

"The bottom line: Acquitted-conduct sentencing effectively divests individuals of their Sixth Amendment right to trial-by-jury by divesting citizens of their historical and constitutional role in the administration of criminal justice. "

Why a new common sense criminal justice reform bill must be passed into law

Writing in the Washington Times, editor David Keene says that acquitted conduct sentencing "throws out the guarantee that a defendant is to be judged by a 'jury of one’s peers,' makes a mockery of jury trials and the 'beyond a reasonable doubt' standard to which the prosecution is supposedly held in criminal cases. 

Preview: DPI Research on Acquitted Conduct Sentencing


Forty states and the District of Columbia either explicitly or implicitly permit the use of acquitted conduct at sentencing. 


Only ten states have abolished the practice: Georgia, Hawai’i, Massachusetts, Michigan, Minnesota, New Hampshire, New Mexico, North Carolina, Oregon, and Washington. 

The method of prohibition varies. Georgia, Hawai’i, Massachusetts, Michigan, New Hampshire, and North Carolina eliminated the practice via court decision; Minnesota, New Mexico, Oregon, and Washington did so via statutory or regulatory sentencing guidelines. The effect of the prohibitions in these ten states also varies depending on the particular sentencing regime the state employs. 

To understand the difficulty that will come with reforming the use of acquitted conduct sentencing at the state level, one needs to understand the various sentencing schemes states employ as state sentencing regimes feature substantial variations in both procedure and substance 


Join the effort to abolish acquitted conduct sentencing!