Cohen, Armstrong, Durbin and Grassley Introduce Bipartisan, Bicameral Prohibiting Punishment of Acquitted Conduct Act

WASHINGTON – U.S. Representatives Steve Cohen (D-TN-09) and Kelly Armstrong (R-ND-At-Large), and U.S. Senate Majority Whip Dick Durbin (D-IL), Chair of the Senate Judiciary Committee, and U.S. Senator Chuck Grassley (R-IA), former Ranking Member of the Senate Judiciary Committee, today introduced the bipartisan, bicameral Prohibiting Punishment of Acquitted Conduct Act of 2023. This legislation would end the unjust practice of judges increasing sentences based on conduct for which a defendant has been acquitted by a jury. 

“The right of criminal defendants to be judged by a jury of their peers is a founding principle of our criminal justice system spelled out in the Constitution. Allowing federal judges to enhance sentences for defendants based on conduct for which they were acquitted by a jury is not right and must end. This a truly bipartisan and bicameral bill and should be made law,” said Cohen, a senior member of the Judiciary Committee.

“The current practice of allowing federal judges to sentence defendants based on conduct for which they were acquitted is not right and is not fair. I am honored to lead this bipartisan sentencing reform legislation that will reaffirm all Americans’ due process rights,” said Armstrong.

“Under our Constitution, defendants can only be convicted of a crime if a jury of their peers finds they are guilty beyond a reasonable doubt. However, federal law inexplicably allows judges to override a jury verdict of ‘not guilty’ by sentencing defendants for acquitted conduct. This practice is inconsistent with the Constitution’s guarantees of due process and the right to a jury trial,” Durbin said. “Our bipartisan, bicameral bill would make it clear that this unjust practice is prohibited under federal law.”

“There’s no sense in punishing defendants for conduct they’ve already been acquitted for,” Grassley said. “Not only have three Supreme Court Justices agreed this practice is unconstitutional, but it also undermines a bedrock principle of American criminal justice: ‘innocent until proven guilty.’ Our bill seeks to permanently prohibit courts from considering past acquittals in new cases.”

Our criminal justice system rests on the Fifth and Sixth Amendment guarantees of due process and the right to a jury trial for the criminally accused. These principles require the government to prove a defendant’s guilt beyond a reasonable doubt to a jury. Under the Constitution, defendants may be convicted only for conduct proven beyond a reasonable doubt. However, at sentencing, courts may enhance sentences if they find, by the lower preponderance of the evidence standard, that a defendant committed other crimes. The difference in those standards of proof means that a sentencing court can effectively nullify a jury’s verdict by considering acquitted conduct.

One prominent example of this unjust practice is the 2005 case of Antwuan Ball, who, along with his co-defendants, was convicted of distributing a few grams of crack cocaine, but acquitted of conspiring to distribute a much larger quantity of drugs. Despite this, the sentencing judge held Mr. Ball responsible for the conspiracy, nearly quadrupling his sentence to 19 years. Mr. Ball asked the Supreme Court to consider his case, but the Court denied the petition for the writ of certiorari. Justice Scalia wrote a blistering dissent, joined by Justices Ginsburg and Thomas, noting that “not only did no jury convict these defendants of the offense the sentencing judge thought them guilty of, but a jury acquitted them of that offense.” Scalia decried the practice, writing that, “this has gone on long enough.”

The Prohibiting Punishment of Acquitted Conduct Act would end this practice by:

• Amending 18 U.S.C. § 3661 to preclude a court of the United States from considering, except for purposes of mitigating a sentence, acquitted conduct at sentencing, and
• Defining “acquitted conduct” to include acts for which a person was criminally charged and adjudicated not guilty after trial in a Federal, State, Tribal, or Juvenile court, or acts underlying a criminal charge or juvenile information dismissed upon a motion for acquittal.

The Prohibiting Punishment of Acquitted Conduct Act is endorsed by the following organizations: American Civil Liberties Union (ACLU), Dream.org, Due Process Institute, Federal Public and Community Defenders, Faith and Freedom Coalition, FAMM, FreedomWorks, The Innocence Project, Justice Action Network, The Leadership Conference on Civil and Human Rights, National Association of Criminal Defense Lawyers, National Legal Aid & Defender Association, Niskanen Center, Prison Fellowship, R Street Institute, The Sentencing Project, Tzedek Association.