Stop Letting Judges Punish Defendants for Acquittals

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We are taught from a young age that people are considered “innocent until proven guilty,” a basic principle of due process that is enshrined in our Constitution. Yet in our federal criminal justice system, judges frequently punish people for alleged conduct that they have been acquitted of at trial by a jury of their peers. 

Acquitted conduct sentencing” allows judges to increase a defendant’s sentence based on conduct of which the jury found the defendant not guilty, which defies common sense. Fortunately, leaders from both parties and across the ideological spectrum are calling for an end to this practice.  

Erick Osby was a victim of this injustice. He was indicted on seven counts after a police search of both a hotel room under someone else’s name and a car in which he was a passenger. Osby exercised his constitutional right to a jury trial. The jury acquitted him for all counts related to the hotel room and for a firearm charge related to the vehicle search. The federal sentencing guidelines recommended a maximum sentence of 30 months for the two drug charges of which he was convicted. Yet a judge nearly tripled that sentence by using the acquitted conduct to “enhance” the conviction (essentially ignoring the jury’s acquittal).

That’s not how justice should work, and that is why Americans for Prosperity Foundation, Dream Corps JUSTICE, the National Association of Criminal Defense Lawyers, and the R Street Institute teamed up to file a cross-ideological brief in the U.S. Supreme Court in support of Osby in Osby v. United States, a case asking the Court to consider whether basing a criminal defendant’s sentence on charges of which the jury acquitted him violates the Fifth or Sixth Amendments. Others including the National Association of Federal Defenders, FAMMthe Cato Institute, and a group of former Federal District Court Judges and law professors have also weighed in to encourage the Court to intervene. And we believe the Court should.

But Congress can also act to end this unconstitutional practice. Looking at Congress today, sometimes it seems like there is no way for people to find common ground, but criminal justice reform has shown a way for people of different political background to work together. We saw it happen with the bipartisan First Step Act of 2018, which has brought 17,000 people home from federal prison, and it can happen again.

Acquitted conduct sentencing is just plain wrong regardless of political party or philosophy. People should not be punished unless a jury finds them guilty at trial and especially not if they have been explicitly acquitted of the same acts by a jury.

Like many other areas of our justice system, acquitted conduct sentencing is unjust and unfair to individual defendants. It is also unfair to juries, undermines the legitimacy of our criminal justice system, and contributes to the infamous “trial penalty,” which leads to overly severe sentencing outcomes.    

When the Supreme Court meets for its long conference today to decide which cases to take during 2022, we hope it takes a close look at Osby’s petition and asks the government for a full formal response. Multiple current and former justices — including Justices Antonin Scalia, Clarence Thomas, Ruth Bader Ginsburg, Neil Gorsuch, and Brett Kavanaugh — have raised concerns and it is time for the entire Court to reconsider the constitutionality of this unjust practice.

Regardless of whether the Court intervenes, it is time for Congress to step in and fix the problem. Bold leaders like Senators Dick Durbin and Chuck Grassley, and Representatives Steve Cohen and Kelly Armstrong have introduced bills in the House and Senate that would end this unconstitutional practice. These reforms have been supported by an even broader coalition of groups including the American Civil Liberties Union, The Innocence Project, and Right on Crime.

The protections of a trial by jury in criminal cases are enshrined in our Bill of Rights. Acquitted conduct sentencing replaces that jury’s judgment with the will of one person — the very practice our Constitution prohibits. We cannot continue to accept this unconstitutional practice. No matter how it happens, all Americans should agree that acquitted conduct sentencing is antithetical to our nation’s principles and must end. 

Michael Pepson is regulatory counsel at Americans for Prosperity Foundation. Janos Marton is national director for Dream Corps JUSTICE.



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