For years, federal judges have been allowed to consider allegations that were ultimately rejected by a jury when sentencing criminal defendants. This practice, known as “acquitted conduct sentencing,” is offensive to basic notions of common sense and the ideals of justice and fair play.

On April 17, 2024, the United States Sentencing Commission took an important step toward ending acquitted conduct sentencing when it voted unanimously to revise the United States Federal Sentencing Guidelines to make clear that judges cannot consider acquitted conduct when calculating a defendant’s sentence. Unless Congress acts to disapprove the revision, it is set to take effect on November 1, 2024.

What Is Acquitted Conduct?

Acquitted conduct refers to actions for which a defendant was indicted but ultimately found Not Guilty. It also includes conduct that an appellate court determined to be insufficient to constitute an offense.

For example, suppose a person was charged with two counts of financial and securities fraud, each constituting $1 million in losses. They take their case to trial and are convicted on one count of securities fraud but are acquitted of the second count. At sentencing, common sense would suggest that the judge could only consider the single count of fraud for which they were convicted, constituting $1 million in losses. But that would be incorrect. As the law currently stands, the judge can consider anything they deem “relevant,” including the second count of fraud for which the defendant was acquitted. Under the Federal Sentencing Guidelines, the defendant’s sentence would be calculated based on $2 million in losses.

To use another example, suppose the defendant was acquitted on both counts. Suppose that, a few years later, that same client is charged with another count of financial and securities fraud, again causing $1 million in losses. This time, the defendant pleads guilty. At sentencing, in addition to considering the single count of securities fraud for which the defendant was convicted, the sentencing judge can also consider the two previous counts of securities fraud for which the defendant was acquitted.

Does that sound fair? Or constitutional?

US Supreme Court Condoned Acquitted Conduct Sentencing in 1997

Since the US Supreme Court affirmed the practice of acquitted conduct sentencing in the 1997 decision of US v. Watts, finding that the use of acquitted conduct at sentencing does not violate the double jeopardy clause, federal judges have used acquitted conduct to increase a defendant’s sentence.

Despite petitions for certiorari asking the Supreme Court to end the practice, the Court waited to see what the Sentencing Commission would do. Yet even now, after the Commission has acted, there is still work to be done. The Federal Sentencing Guidelines only preclude consideration of acquitted conduct when calculating the advisory sentencing guidelines. A sentencing court can still deviate from the Guidelines’ recommendation and consider acquitted conduct for purposes of a variance from the advisory guideline.

Proposed Legislation Would Preclude Consideration of Acquitted Conduct

Title 18 of the US Code, Section 3661, Use of information for sentencing, states that "No 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."

Congress is currently considering bipartisan legislation that would modify this section by adding after "appropriate sentence" the phrase "except that a court of the United States shall not consider, except for purposes of mitigating a sentence, acquitted conduct under this section.”

On April 30, the Sentencing Commission announced it was considering making the acquitted conduct amendment retroactive. If passed, that would mean any federal defendant currently serving a sentence that was increased by consideration of acquitted conduct could be eligible for a sentence reduction.

“Not Guilty Means Not Guilty.”

If a person is truly presumed innocent until proven guilty, that presumption should apply across the board. As Judge Carlton W. Reeves, Chair of the Sentencing Commission, stated, "Not guilty means not guilty. By enshrining this basic fact within the federal sentencing guidelines, the Commission is taking an important step to protect the credibility of our courts and criminal justice system."

Nonetheless, the purported prohibition on acquitted conduct sentencing will not necessarily end the practice. The Federal Sentencing Guidelines are not binding on federal judges, and they do not apply in state court at all. However, they are highly influential and make clear that acquitted conduct has no place in sentencing.

In addition to prohibiting the practice of acquitted conduct sentencing, the US Supreme Court and the Sentencing Commission should go a step further and make clear that, for purposes of federal sentencing, a judge should not consider acquitted conduct, dismissed conduct, conduct beyond the statute of limitations, or even uncharged conduct.

Hope Lefeber is a federal criminal defense attorney in Philadelphia and New York City. She has over 30 years of experience representing people charged with crimes in federal court and has earned a reputation as a fierce defender of the rights of the accused. She is well known for her in-depth knowledge of the complex Federal Sentencing Guidelines, which she uses to achieve the best possible results for her clients.