Sunday, March 7, 2021
Perhaps one of the most difficult issues to explain to students is that acquitted conduct may be used by a court in sentencing someone convicted of a crime. And it should be difficult to explain this, as it goes against the grain of fundamental constitutional rights at the core of our democracy. It is therefore good to see that US Senators Dick Durbin and Chuck Grassley have "introduced the bipartisan, bicameral Prohibiting Punishment of Acquitted Conduct Act of 2021." " This legislation would end the unjust practice of judges increasing sentences based on conduct for which a defendant has been acquitted by a jury." (see here). Due process demands that this be passed. As noted in Senator Durbin's press release, Justice Scalia in a dissent to a petition for certiorari wrote, "not only did no jury convict these defendants of the offense the sentencing judge thought them guilty of, but a jury acquitted them of that offense." Justices Ginsburg and Thomas had joined in this dissent. This is a strong bipartisan issue that needs correction. (proposed bill here).
See also Cara Salvatore, Law360, Sens. Revive Push to Ban Sentencing for Acquitted Conduct