On September 26, 2019, a bill prohibiting punishment of acquitted conduct was introduced in the United States Senate. The Prohibiting Punishment of Acquitted Conduct Act of 2019 (“Act”) would amend 18 U.S.C. § 3661 to stop increasing sentences based on conduct for which a defendant has been acquitted by a jury.
Currently, § 3661 provides “[n]o limitation shall be placed on the information concerning the background, character, and conduct of a person convicted of an offense which a court of the United States may receive and consider for the purpose of imposing an appropriate sentence.” The Act would insert the following language at the end of this sentence: “except that a court of the United States shall not consider, except for purposes of mitigating a sentence, acquitted conduct under this section” to make clear that a court cannot ignore a jury’s not guilty verdict for sentencing purposes. Acquitted conduct is defined as follows.
(1) an act—
(A) for which a person was criminally charged and adjudicated not guilty after trial in a Federal, State, or Tribal court; or
(B) in the case of a juvenile, that was charged and for which the juvenile was found not responsible after a juvenile adjudication hearing; or
(2) any act underlying a criminal charge or juvenile information dismissed—
(A) in a Federal court upon a motion for acquittal under rule 29 of the Federal Rules of Criminal Procedure; or
(B) in a State or Tribal court upon a motion for acquittal or an analogous motion under the applicable State or Tribal rule of criminal procedure.”
There is currently federal case law allowing a court to ignore a jury’s not guilty verdict by sentencing a defendant based on acquitted conduct. This case law is difficult to reconcile with United States v. Booker, 543 U.S. 220 (2005), however. In Booker, the Court held that under the Sixth Amendment, any fact other than a prior conviction that was necessary to support a sentence exceeding the maximum authorized by the facts established by a plea of guilty or a jury verdict had to be admitted by a defendant or proved to a jury beyond a reasonable doubt. Nevertheless, the proposed amendment to § 3661 should clarify inconsistencies in case law addressing this issue.