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
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
As English jurist William Blackstone famously wrote in
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.”
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.”
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 email@example.com.
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