We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.
CONGRESSIONAL SHORT TAKES…
House OKs Prohibition on Using Acquitted Conduct in Sentencing: Last week, the House passed H.R. 1621, the Prohibiting Punishment of Acquitted Conduct Act of 2021 by an overwhelming 405-12 vote.
Co-sponsor Steve Cohen (D-TN), said, “The right of criminal defendants to be judged by a jury of their peers is a foundational principle of the Constitution. The current practice of allowing federal judges to sentence defendants based on conduct for which they were acquitted by a jury is not right and is not fair.”
A similar measure introduced by Sens Dick Durbin (D-Illinois) and Chuck Grassley (R-Iowa) was considered in the Senate Judiciary Committee last June and has been advanced to the full Senate.
The bill actually does very little. If a federal defendant goes to trial and is acquitted on one or more counts, but is convicted on at least one count, the sentencing judge may nevertheless take into account all of the conduct for which the defendant was acquitted in setting a sentence. All the judge has to do is conclude that the government proved the defendant committed the acquitted acts by a preponderance of the evidence, a lower standard than the standard for conviction, which is “beyond a reasonable doubt.”
So the legislation will benefit the portion of the 6% who go to trial who are not acquitted of all charges and who are not convicted of all charges. That’s a pretty small slice. It will not help people whose sentences are affected by charges that the government dismisses or, even more common, accusations of relevant conduct which are never charged to begin with.
And, no, it will not be retroactive. Still, any nudge of sentencing procedure toward sanity is welcome.
H.R. 1621, Prohibiting Punishment of Acquitted Conduct Act of 2021
Steve Cohen, Congressman Cohen Speaks in Favor of and Votes for His Bill Prohibiting the Consideration of Acquitted Conduct in Sentencing (Mar 28)
Sen Hawley Introduces Bill to Slam Judge Jackson and CP Defendants: Who saw this coming?
In the wake of his criticism of Judge Ketanji Brown Jackson for being soft on child pornography defendants, Sen Josh Hawley (R-MO) has week introduced a bill to require a minimum 5-year sentence on people possessing child pornography and to require judges to sentence within the Guidelines for any child pornography offense.
Rep Ken Buck (R-CO) introduced companion legislation in the House.
A Democratic Party opponent to Hawley said of the bill, “We can count on Senator Hawley to find the lowest common denominator to draw attention to himself. The independent ABA’s review board found this line of questioning to be misleading and multiple fact checkers have debunked the allegations regarding sentencing. Choosing this time to introduce this legislation is purely for attention and designed to appeal to conspiracy.”
S.3951, Protect Act of 2022
H.R. 7263, Protect Act of 2022
Washington Times, GOP introduce bill to beef up child porn sentences after Judge Jackson’s confirmation hearing (March 30, 2022)
KYTV, Springfield, Missouri, Missouri U.S. Sen. Josh Hawley introduces bill over sentences for child porn offenders (April 2, 2022)
FAMM Issues EQUAL Act Analysis: FAMM released an analysis last week urging the Senate to approve the EQUAL Act reporting that if the bill becomes law, it will reduce sentences for people already serving time for crack offenses by an average of just over six years, cutting 46,500 years off sentences. FAMM estimates that 91% of people benefitting from EQUAL Act are black.
FAMM, The EQUAL Act: Why Congress Must #EndTheDisparity Between Federal Crack & Powder Cocaine Sentences (March 31, 2022)
– Thomas L. Root