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Acquitted Conduct at Sentencing


The Washington Times has the story today of a defendant convicted for a $600 drug deal.  He had previously been acquitted of much more serious charges  --  namely, racketeering and conspiracy charges arising from his leadership of a violent drug gang in Washington, DC.  He got an 18 year sentence for the $600 deal because the trial judge relied upon some of the information adduced with respect to the more serious allegations.

The use of acquitted conduct really riles the defense bar, and, to be fair, it does have a counter-intuitive feel to it, at least at first blush.  But it has long been used at sentencing, and rightly so.  The reason is simple.  "Acquitted" doesn't mean "didn't do it"  (O.J. Simpson, call your office).

If one believes that sentencing should reflect actual reality, there is nothing wrong with using acquitted conduct, and plenty right with it. 

Today's story has a background.  For years, the defense bar has been urging the Sentencing Commission to change the Federal Sentencing Guidelines so as to bar the use of acquitted conduct.
There are several reasons the Commission has, thus far, refused, and that any action it might take in the future would not necessarily get the defense bar where it wants to be. 

First, there's no indication the Commission dislikes the present state of the law. 
Second, the Commission is not a court, and cannot overrule Congress (indeed it works the other way around).  Congress's policy is set forth in 18 U.S.C. 3577:  "No limitation shall be placed on the information concerning the background, character, and conduct of a person convicted of an offense which a court of the United States may receive and consider for the purpose of imposing an appropriate sentence."
Third, even if the Commission wanted to change the acquitted conduct rule and could get away with it, such conduct could still be considered by any judge who cared to.  After US v. Booker, decided more than six years ago, the Commission's guidelines are advisory only; judges are no longer bound by them.  And many if not most judges would continue to take account of acquitted (and uncharged) conduct, because they understand that sentences should reflect the whole reality of the defendant's behavior and attitude (a point that in other contexts defense lawyers insist upon).
Fourth, it simply makes no difference what the Sentencing Commission does about the acquitted conduct rule so long as it continues to enjoy support in the Supreme Court.  Sentencing judges pay some attention to the Commission, but a lot more to the Supremes.  In both US v. Watts, 519 US 148 (1997), and Booker, the Supreme Court has made it clear that considering acquitted conduct is proper. 

Of course none of this answers directly the question whether it's fair to consider acquitted conduct at sentencing, but it is.  As noted, just because the defendant gets acquitted of X hardly means he didn't do X.  Acquittals happen all the time for reasons unrelated to factual innocence.  There are, for example, dopey prosecutors, dopey jurors, erroneous jury instructions, compromise verdicts, disappearing evidence (sometimes courtesy of witness intimidation (or murder)), and of course good old-fashioned perjury, which goes on all the time.


The simplest reason of all is the burden of proof. If the evidence establishes a 90% probability that the defendant committed the act, the correct verdict in the guilt phase is "not guilty," a misnomer that really means "not proven."

But the facts to be considered in sentencing do not need to be proved beyond a reasonable doubt. Does anyone on the defense side wish to make a rule that a fact in mitigation cannot be considered unless the defendant proves it beyond a reasonable doubt?

In the guilt phase, we intentionally skew the burden of proof on the theory that it is better for 10 guilty men to go free than for 1 innocent to be convicted. In the sentencing phase, the equities do not call for such a skew. A sentence within the legal range for the crime the defendant chose to commit is not a miscarriage of justice in the same sense that conviction of an innocent person is.

There is a legitimate gripe when it comes to laws where the sentence enhancement is much larger than the base sentence -- the tail wagging the dog. Such laws should be done away with. But that is a different question.

This was apparently a DC Superior Court case as the sentencing guidelines were not applicable. Assuming a 20 year maximum sentence on the count of conviction, the jurist was well within his purview to impose a sentence based on all relevant sentencing factors that were present by a preponderence standard.

Judges in my court were loathe to use acquitted conduct. It was used sparingly for only the most extreme cases of jury nullification, etc.

To add to Kent's remarks, I would point to the OJ case. It's the perfect illustration of the burden of proof divide.

The criminal jury, using the beyond-a-reasonable-doubt standard, found OJ not guilty of the murders. They might even have been correct in this, given the astronomical incompetence of the prosecution team. Or they might have been wrong; I don't know, because I didn't sit in on the twelve year long (or whatever it was) trial.

The civil jury, using a preponderance standard, found OJ "responsible."

Kent does a good job of cutting to the chase. The central question in the minds of normal people is not what standard gets used. The question is: Did he do it?

He did. I haven't found a single serious person who thinks anything else.

It would be an exaggeration to say that dwelling on the law professor's concern about the difference in standards of proof is an obsession with legalism over law. The criminal standard of proof serves an important purpose in restraining government power, as Kent explains. But a balance must be struck. A prudent regard for restraining the government must be weighed against the obligations the law owes the next victim of a thug who serendipitously gets put back on the street.

And this is what gets missed. An erroneous acquittal is, like an erroneous conviction, a miscarriage of justice. Depending on the case, it is, moreover, dangerous. A factually guilty man, chuckling and emboldened by having bested the system, is even more likely to do it again than your average recidivist.


I think this was in federal court, since the story refers to sentencing "by U.S. District Judge Richard W. Roberts."

In Alexandria where I worked, most of the judges had no problem with acquitted conduct. On the other hand, there weren't that many acquittals.

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