The Imperative for Outlawing “Acquitted Conduct Sentencing”

Zuckerman Spaeder LLP

Zuckerman Spaeder LLP


In federal court, “not guilty” doesn’t always mean no punishment. Under a quirk of federal sentencing law, judges are permitted to consider at sentencing anything that they consider relevant, including conduct for which a jury has explicitly found the defendant not guilty.1 In the 1997 Supreme Court case United States v. Watts, a majority of the Justices explained the perverse logic behind this practice. While a defendant may be convicted only of crimes proven beyond a reasonable doubt, he may be sentenced based on facts established by the lower “preponderance of the evidence” standard.2 In other words, if the jury acquits the defendant on one count but convicts on at least one other, the judge can increase the sentence on the basis of the acquitted conduct so long as the judge concludes that conduct probably occurred.

So-called “acquitted conduct sentencing,” however, may soon be abolished under the United States Sentencing Guidelines. A proposed amendment would exclude acquitted conduct from the universe of “relevant” information a judge may consider in calculating a defendant’s guideline range.3 Also on the table are two other proposals which would limit, though not altogether ban, acquitted conduct sentencing under the Guidelines. The public comment period for the proposed amendment ended last week; among those who wrote in support were the NAACP Legal Defense Fund, the New York City Bar Association, and several federal judges themselves. As Judge Steven Bough of the U.S. District Court for the Western District of Missouri wrote: “To get an acquittal means you are not guilty. To then later prove someone is ‘guilty’ on an acquitted crime through a lesser standard of proof turns . . . constitutional protections on its head.”4 Those who commented in opposition to the amendment included the U.S. Department of Justice and the National Association of Assistant U.S. Attorneys, the latter of which called it “unfair” to ask judges to disregard acquitted conduct at sentencing. The United States Sentencing Commission is expected to issue its decision later this year.5

The Commission should adopt the strongest version of the amendment and prohibit consideration of acquitted conduct in applying the Guidelines. Acquitted conduct sentencing is justifiable only under the kind of lawyerly formalism that makes little intuitive sense. Indeed, jurors would probably be shocked to learn that their carefully considered, unanimous verdict of “not guilty” could be disregarded by the judge at sentencing. There is, of course, value in affording judges more evidentiary leeway in considering a broader universe of information in order to fashion appropriate, individualized sentences. But it is reasonable to exclude from that universe information already considered and rejected by the factfinder at trial.

The practice of acquitted conduct sentencing is particularly unjust in a system that incentivizes prosecutors to overcharge in order to gain leverage in plea negotiations. Technically speaking, prosecutors are not limited to bringing only those charges they believe are provable at trial—a charge need only be supported by probable cause. Although some standards may instruct against bringing charges unless “the prosecutor reasonably believes . . . that admissible evidence will be sufficient to support conviction beyond a reasonable doubt,”6 and non-binding Justice Department guidance has long included a similar policy,7 such standards are in reality difficult to enforce. As the Supreme Court acknowledged in the 1978 case Bordenkircher v. Hayes, it is a “simple reality that the prosecutor’s interest at the bargaining table is to persuade the defendant to forgo his right to plead not guilty.”8 A defendant charged with five crimes is more likely to plead guilty than a defendant charged with one, especially where the prosecutor offers to drop charges in exchange for the plea. In the rare federal case that goes to trial, then, so long as the jury convicts on something, the defendant could—via acquitted conduct sentencing—be punished for a crime not even the prosecutor believed provable at trial.

Federal judges are, of course, no longer required to follow the Sentencing Guidelines following the Supreme Court’s 2005 decision in United States v. Booker.9 But sentencing courts are required to consider the Sentencing Guidelines, and they remain the benchmark for sentencing. A Guidelines prohibition on acquitted conduct sentencing would likely curb the practice significantly. At the very least, the change will send an important signal about what is and isn’t appropriate to consider at sentencing.

A bill currently pending in Congress would go even further. The “Prohibiting Punishment of Acquitted Conduct Act of 2023,” co-sponsored by Senators Chuck Grassley (Republican of Iowa) and Dick Durbin (Democrat of Illinois) would prohibit acquitted conduct sentencing entirely. The House Judiciary Committee unanimously approved the bill on November 2, 2023.10 An identical bill previously stalled in the Senate due to legislative gridlock, but only after passing the House with overwhelming bipartisan approval.11 To the extent that punishment is supposed to reflect the will of the people, the House vote suggests that acquitted conduct sentencing does exactly the opposite.

The Sentencing Commission should adopt the pending amendment to the Guidelines and end its endorsement of a practice that offends basic notions of fairness.

1 See 18 U.S.C. § 3661; U.S.S.G. § 6A1.3(a).
2 United States v. Watts, 519 U.S. 148, 157 (1997).
3 United States Sentencing Commission, Proposed Amendments to the Sentencing Guidelines, Dec. 26, 2023,
4 United States Sentencing Commission, 2023-2024 Amendment Cycle, Proposed Amendment/Public Comment 88 FR 89142, p. 43,
5 Id., pp. 49, 465.
6 ABA Standards for the Prosecution Function Std. 3-4.3(a).
7 Justice Manual § 9-27.220,
8 Bordenkircher v. Hayes, 434 U.S. 357, 364 (1978).
9 United States v. Booker, 543 U.S. 220, 259 (2005).
10, H.R.5430 - Prohibiting Punishment of Acquitted Conduct Act of 2023: 118th Congress (2023-2024),
11 Clerk: United States House of Representatives, Roll Call 83 | Bill Number: H. R. 1621, Mar. 28, 2022 (117th Congress, 2nd Session), (reflecting vote of 405-12 in favor).

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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