Diverse coalition urges Supreme Court to end acquitted conduct sentencing

Jul 9, 2021 by Michael Pepson

Should people be punished for alleged conduct a jury has acquitted them of at trial?

As a matter of common sense, the answer must be “no.” In America, people are considered “innocent until proven guilty” and the government derives its ability to restrict someone’s liberty only upon a finding of guilt.

This means that judges should not be allowed to effectively overrule jury acquittals, but federal judges frequently do (often dramatically) increase defendants’ sentences based on judge-found facts — using a standard of proof lower than the reasonable doubt standard that applies to jury decisions in criminal cases.

In fact, this practice — often referred to as “acquitted conduct sentencing” — is specifically allowed by a federal statute and current sentencing guidelines.

Americans for Prosperity’s sister organization, Americans for Prosperity Foundation (AFPF) has teamed up with the National Association of Criminal Defense Lawyers (NACDL), Dream Corps JUSTICE, and the R Street Institute to file a cross-ideological brief in the U.S. Supreme Court in support of MacArthur Justice and the Federal Defender’s petition on behalf of Erick Osby.

Mr. Osby’s prison sentence was tripled based on judge-found facts overriding the jury’s acquittal decisions. The coalition’s brief asks the Court to end this unconstitutional sentencing practice. The groups argue:

“The mere fact that a defendant whose exposure to criminal punishment is driven by acquitted conduct has also been convicted of some other criminal offense — which may be completely unrelated to and far less serious than the acquitted conduct — does not justify either (a) replacing the reasonable doubt standard with the lower preponderance standard, or (b) allowing a judge to effectively overrule a unanimous jury acquittal.”

AFPF is not alone in taking issue with acquitted conduct sentencing. Indeed, many highly respected judges have questioned the constitutionality of this practice.

For example, in 2014, in a statement dissenting from the Court’s decision to deny review in Jones v. United States, Justice Antonin Scalia, joined by Justice Ruth Bader Ginsburg and Justice Clarence Thomas, wrote:

“The Sixth Amendment, together with the Fifth Amendment’s Due Process Clause, requires that each element of a crime be either admitted by the defendant, or proved to the jury beyond a reasonable doubt.”

As then-Judge Brett Kavanaugh put it in a concurring statement while on the D.C. Circuit:

“Allowing judges to rely on acquitted or uncharged conduct to impose higher sentences than they otherwise would impose seems a dubious infringement of the rights to due process and to a jury trial.”

Numerous other justices, judges, scholars, and political leaders have justifiably criticized this sentencing practice on constitutional and fairness grounds, as the brief explains, as have many practitioners and other organizations interested in criminal justice reform.

The brief argues that acquitted conduct sentencing violates the Sixth Amendment’s jury trial right and the due process requirement that any fact legally necessary for punishment must be found by a jury beyond a reasonable doubt, unless admitted by a defendant.
The brief further highlights that, in addition to undermining the presumption of innocence, this practice also undermines the jury system and the legitimacy of our criminal justice system.
It also increases the risk that people are being punished for conduct they are actually innocent of by ignoring the familiar “beyond a reasonable doubt” standard central to our criminal justice system. As Sir William Blackstone put it, “it is better that 10 guilty persons escape than that one innocent suffer.”
Lastly, it increases what is known as the “trial penalty” and the government’s ability to coerce guilty pleas without proving it has enough evidence to do so at trial.

This will not be the first time that this practice has been questioned and groups have sought to end it. On numerous occasions, petitioners supported by organizations interested in criminal justice reform have asked the Supreme Court to step in and put a stop to acquitted conduct sentencing, yet the Supreme Court has declined to intervene.

More recently, AFPF’s sister organization, Americans for Prosperity, has joined a coalition with NACDL, Dream Corps JUSTICE, the R Street Institute, and many others, to urge Congress to pass legislation barring judges from punishing defendants for alleged conduct a jury has found them not guilty of.

But there is no guarantee that this legislation will be enacted and that Congress can bring the federal sentencing regime in line with the U.S. Constitution.

The Supreme Court should grant review of this case to end an unconstitutional and unjust practice that has been allowed to continue for decades.

Read the full brief here.