UPDATE: The Imperative for Outlawing “Acquitted Conduct Sentencing”

For too long, judges have been permitted at sentencing to consider anything they deem “relevant,” including allegations that were considered and rejected by a jury. So-called “acquitted conduct sentencing” clearly offends commonsense notions of fairness. And, as discussed in a prior post by Zuckerman Spaeder attorneys David Reiser and Bryan Reines, the practice may also violate the Double Jeopardy clause.

On April 17, 2024, however, the United States Sentencing Commission took an important step towards ending acquitted conduct sentencing. The Commission voted unanimously to revise the United States Sentencing Guidelines to make clear that federal judges may not consider acquitted conduct in calculating a defendants’ guideline range.¹ Unless Congress acts to disapprove it, the amendment will take effect on November 1, 2024.²

As explained in a prior post, a prohibition on using acquitted conduct to calculate a defendant’s applicable range under the United States Sentencing Guidelines will not necessarily end the practice. The Guidelines are not binding on federal judges, and they do not apply at all in state court. Nevertheless, the Guidelines remain highly influential, and the Commission’s clear statement that acquitted conduct has no place in sentencing is encouraging.

As the Chair of the Sentencing Commission put it, “[n]ot guilty means not guilty.”³ Hopefully, judges everywhere hear the message loud and clear. 

¹ The amendment would add to Guideline § 1B1.3 a new subsection (c), providing that “[r]elevant conduct does not include conduct for which the defendant was criminally charged and acquitted in federal court unless such conduct also establishes, in whole or in part, the instant offense of conviction.” See Amendments to the Sentencing Guidelines 1 (Apr. 30, 2024). 

² United States Sentencing Commission, News Release: Commission Votes Unanimously to Pass Package of Reforms Including Limit on Use of Acquitted Conduct in Sentencing Guidelines, https://www.ussc.gov/about/news/press-releases/april-17-2024. 

³ Id.