Breaking News: No More Sentencing on Acquitted Conduct

On April 17, 2024, the United States Sentencing Commission voted unanimously to prohibit federal courts from sentencing individuals based on acquitted conduct. What does this mean?

In federal court, individuals are sentenced using the Federal Sentencing Guidelines Manual, which creates a guideline range in months based on numerous factors, such as role in the offense, drug quantity, loss amount, etc. 

Let’s say an individual went to trial on multiple charges, such drug trafficking, money laundering, and firearm possession. Now let’s say that the individual was only convicted of the drug trafficking but acquitted of everything else. At sentencing, you would think that the judge could only sentence the individual based on the drug trafficking, but unfortunately, for too long that wasn’t the case.

An application note to the guidelines states “[c]onduct that is not formally charged or is not an element of the offense of conviction may enter into the determination of the applicable guideline sentencing range” so long as the sentencing judge finds that the individual committed the relevant conduct by a preponderance of the evidence (a lower standard than beyond a reasonable doubt). This means that even if a jury finds the accused not guilty, the acquitted counts can be used to enhance a sentence on the counts of conviction.

Just last year, the United States Supreme Court declined to consider the issue in McClinton v. United States (21-1557), a case challenging the acquitted conduct doctrine. McClinton pointed out that by allowing courts to consider acquitted conduct at sentencing, prosecutors are incentivized to overcharge individuals with crimes they know they can’t prove in order to coerce them into pleading guilty; the higher the sentencing exposure, the greater the risk in taking a case to trial, especially because the accused can be sentenced on acquitted counts.  As Justice Sotomayor pointed out in her statement on McClinton, the use of acquitted conduct at sentencing strips the jury of its most important function and gives the prosecutors a “second bite at the apple” to punish an individual for conduct of which the accused is legally innocent. In denying certiorari, the Supreme Court left it to the U.S. Sentencing Commission to decide how to tackle acquitted conduct. In the USSC’s press release, Chair Reeves 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.”

The U.S.S.C. will deliver the amendments to Congress on May 1, 2024, and if Congress does not act to disapprove the changes, they will go into effect on November 1, 2024. For many in the criminal justice system, the change can’t come soon enough.