The United States Sentencing Commission recently proposed a major change to federal sentencing law, indicating that it may bar the use of acquitted conduct at sentencing where defendants have been acquitted of some charges but convicted of others. This would represent a major change in federal sentencing law. Currently, federal judges may sentence criminal defendants based on conduct for which the jury acquitted them. This is an incredibly unfair practice as it means that a defendant may go to trial on two charges, get acquitted by the jury of the more serious charge when the jury finds that the government could not prove the offense beyond a reasonable doubt, and then still be sentenced as if they had been convicted of the more serious charge.

Acquitted conduct is an offense for which the defendant was not convicted. For example, in many cases, defendant could be charged with guns and drugs at the same time. The penalties for federal drug offenses can be draconian on their own, but the presence or use of a firearm during the commission of the drug offense can result in mandatory minimums and federal sentencing guidelines that are exponentially higher. Federal judges take the guidelines incredibly seriously, so the guideline calculation is extremely important. Currently, there is nothing preventing federal judges from treating a defendant who has been convicted of a drug offense but acquitted of the firearm offense the same at sentencing as if the defendant had been convicted of both offenses. This can lead to a drastically longer sentence even though the jury partially acquitted. Federal judges also may often consider conduct for which the defendant was never charged.

Similar sentencing issues can arise in white collar cases, as well. For example, where a jury acquits a defendant of some counts related to a fraud scheme but convicts on others, the judge can currently sentence based on dollar amounts involved in the counts for which the defendant was acquitted. Because the loss amount involved is often the most important factor in the federal sentencing guideline calculation, this can have a significant impact on the resulting sentence.

Numerous defendants have attempted to challenge this practice as violating the Constitution in the United States Supreme Court, but the Supreme Court has rejected those challenges. The Supreme Court concluded in United States v. Watts that “a jury's verdict of acquittal does not prevent the sentencing court from considering conduct underlying the acquitted charge.” Some of the recently confirmed justices have previously signaled that they may reconsider that ruling, but so far, the Court has not accepted any petitions for certiorari on the issue.

The Sentencing Commission, however, could avoid the need for court action should it approve the proposed change. The proposed change would preclude courts from being able to consider acquitted conduct at sentenicng. The Sentencing Commission was created by Congress for the purpose of establishing the rules by which the guidelines are calculated. Ultimately, the guidelines produce a recommended sentencing range for the judge to consider when imposing sentencing. Until recently, the guideline range was actually mandatory and a judge could not sentence below the guidelines under most circumstances. The guidelines are no longer mandatory, but they are still extremely important.

The downside of the change being approved by the Sentencing Commission rather than the Court is that the change would almost certainly not be retroactive. However, this is an important change that strengthens the presumption of innocence and holds the government to its burden of proving a defendant guilty beyond a reasonable doubt. Criminal defendants should not be sentenced for things that the jury found that they did not do.

This change would only affect federal sentencing proceedings. It would not alter the current practice in the Pennsylvania state courts. The Pennsylvania state courts also use sentencing guidelines, but the guidelines are not quite as important as they are in federal court. The state courts are far more likely to depart from them. Further, it is relatively rare for courts to consider acquitted conduct or conduct for which a defendant was not charged in a state court sentencing proceeding. It is not necessarily prohibited at all times, but state court judges almost always agree that they should not hold alleged offenses for which a defendant was acquitted against them.

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