We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

COMING AROUND AGAIN

The Prohibiting Punishment of Acquitted Conduct Act of 2023 (HR 5430) – looking a lot like the doomed 2021 version – landed in the Congressional bill hopper last week.

Reps Steve Cohen (D-TN) and Kelly Armstrong (R-ND) introduced a House version and Senate Majority Whip Richard Durbin (D-IL) and Sen Chuck Grassley (R-IA) introduced the bipartisan, bicameral bill on the Senate side. The legislation would end the 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,” said Cohen, a senior member of the House Judiciary Committee.

The Supreme Court, despite signals over the past decade that it would address acquitted conduct sentencing as a 6th Amendment violation, denied certiorari to a baker’s dozen cases on the last day of last term, after sitting on petitions seeking review for months. The US Sentencing Commission has named review of such sentencing as a priority for review in the coming year.

The Act would amend 18 USC § 3661 to preclude a court from considering, except for purposes of mitigating a sentence, acquitted conduct at sentencing.

“Acquitted conduct” would include acts for which a person was adjudicated not guilty after trial or dismissed on an FRCrimP 29 motion for acquittal.

HR 5430, Prohibiting Punishment of Acquitted Conduct Act of 2023

Press Release, Cohen, Armstrong, Durbin and Grassley Introduce Bipartisan, Bicameral Prohibiting Punishment of Acquitted Conduct Act (Sep 13)

– Thomas L. Root