Thursday, April 28, 2022

TCR: Defending the Presumption of Innocence

Matthew T. Mangino
The Crime Report
April 28, 2022

In a rare bipartisan vote, the U.S. House of Representatives earlier this month overwhelmingly agreed to stop the unconscionable practice of enhancing a federal offender’s sentence based on conduct for which the offender was previously acquitted.

The House voted by a margin of 405 to 12 for the Prohibiting Punishment of Acquitted Conduct Act of 2021, which would end the current practice of federal judges considering, for purposes of enhancing a defendant’s sentence, conduct for which a jury found the defendant not guilty.

The Supreme Court has called the right to a jury trial one of the foundations of American law. There are two principles that are fundamental in American jurisprudence.  First, an accused is presumed innocent until proven guilty; and second, the government must prove guilt beyond a reasonable doubt.

The presumption of innocence is not guaranteed in the U.S. Constitution. However, through laws and court decisions it has been recognized as one of the most basic requirements of a fair trial.

On the other hand, the Due Process Clause of the Fourteenth Amendment protects the accused against conviction “except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime charged.”

Jurors are instructed before deliberations about the government’s burden of proof.

The instructions normally include some variation of the following, “It is not required that the government prove guilt beyond all possible doubt.”  The test is one of reasonable doubt.  A reasonable doubt is a doubt based on reason and common sense—the kind of doubt that would make a reasonable person hesitate to act.

“Beyond a reasonable doubt” is a heavy burden, and it should be.

As English jurist William Blackstone famously wrote in his 18th century Commentaries, “It is better that ten guilty persons escape than that one innocent suffer.”

However, on a federal level, once a defendant has been convicted by a jury, sentencing is generally a matter within the province of the judiciary. As a result, “beyond a reasonable doubt” flies out the window when it comes to sentencing.

The U.S. Supreme Court has held that acquitted conduct may be considered by a judge for sentencing.

As the practice exists today, the defendant was accused of a crime.  Twelve jurors found the defendant not guilty, but at a subsequent proceeding the acquitted conduct can be used to enhance the defendant’s sentence on an unrelated matter.

In 2020, a former federal judge and a group of law professors suggested, in a friend of the court brief, that a judge considering acquitted conduct results in “judicial nullification of juries.”

The scholars went on to argue, “Enhancing a defendant’s sentence based on acquitted conduct is not only something that the jury’s verdict ‘failed to authorize,’ it relies upon ‘facts of which the jury expressly disapproved.’”

In 2014, Justice Antonin Scalia, joined by Justice Clarence Thomas and—an unlikely ally— Justice Ruth Bader Ginsburg, wrote in a dissenting opinion opposing the Court’s refusal to hear a case about acquitted conduct, this Court must “[P]ut an end to the unbroken string of cases disregarding the Sixth Amendment.”

In a press release supporting Prohibiting Punishment of Acquitted Conduct Act, co-sponsors  Rep. Kelly Armstrong (R-ND), and Rep. Steve Cohen D-TN), said when the bill was sent from the Judiciary Committee to the full house, “The right of criminal defendants to be judged by a jury of their peers is a foundational principle of the Constitution.”

They continued: “The current practice of allowing federal judges to sentence defendants based on conduct for which they were acquitted by a jury is not right and is not fair.”

Last summer, the Senate version of the House bill, Bill 601, Punishment of Acquitted Conduct Act, co-sponsored by Senate Judiciary Chairman Dick Durbin of Illinois, and Sen. Chuck Grassley of Iowa, was approved by the Senate Judiciary Committee.

The full U.S. Senate needs to act quickly to correct this Constitutional inequity and send the Prohibiting Punishment of Acquitted Conduct Act to the President for his signature.

Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly and George. P.C. and the former district attorney of Lawrence County, PA.   He is the author of The Executioner’s Toll. You can follow him on twitter @MatthewTMangino or contact him at

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