Congress Must Abolish Acquitted Conduct Sentencing

By Marc Levin and Martín Sabelli | May 31, 2024, 2:59 PM EDT ·

Marc Levin
Marc Levin
Martín Sabelli
Martín Sabelli
In 1996, after a long federal trial on drug trafficking conspiracy charges, Jessie Ailsworth waited for the jury to decide his fate.

Facing 35 charges, Ailsworth knew, as he recently testified before the U.S. Sentencing Commission, that the jury had taken "their time, wrote notes, asked questions, and reached their verdicts," just as the framers of our Constitution envisioned. His fate lay in the hands of the jury — or so he thought.[1]

What happened next will surprise anyone unschooled in the ways in which we have distorted the noble vision of the framers.

First, Ailsworth heard the foreperson speak the words "not guilty" 28 times, and "guilty" only seven times, and only on the least serious charges. The jury had, in effect, decided that Ailsworth had played a minor role in the conspiracy after hearing all the evidence and deliberating thoughtfully.

Speaking in one voice, 12 diverse citizens had rejected the prosecution's theory that he had played a major role. The jury system had worked for an individual facing the power of the state.

Then, the magic of the jury system dissipated. Despite being acquitted on the 28 most serious charges, the judge sentenced Ailsworth to 30 years in prison based on the facts contained in the charges that the jury had rejected. How could this happen?

As shocking as this might be, federal law allows judges to impose a sentence based on acquitted conduct if the jury has convicted on at least one count.

Why? Because juries decide guilt or innocence using a reasonable doubt standard, and judges impose sentences based on a "more likely than not" standard. Judges, in effect, have the ability to put aside the hard work and wisdom of the jury under a federal technicality built into the sentencing guidelines. Ailsworth recently testified before the U.S. Sentencing Commission, asking it to do away with, or at least limit, this practice.

Does this scenario seem even remotely close to what the framers intended by trial by jury, or what most of us believe is fair?

Allowing judges to impose severe sentences where juries have acquitted defendants undermines the fundamental principles of trial by jury, innocent until proven guilty, due process, double jeopardy and reasonable doubt — the heart of the Fifth and Sixth Amendments. Shifting this power from juries to judges also opens the door for individual biases, because the inherent diversity of a jury operates as a check on individual biases.

Unsurprisingly, this practice has been criticized by advocates across the political spectrum. While federal courts have allowed the practice, as our prisons have overflowed, some state courts have held the practice unconstitutional. Also, a host of prominent jurists, including Justices Antonin Scalia, Ruth Bader Ginsburg and Clarence Thomas, have criticized the practice.[2]

Can we fix this problem and restore trial by jury as intended by the framers?

On April 17, the U.S. Sentencing Commission — a body charged with revising sentencing rules — imposed some limits on the use of acquitted conduct in sentencing.[3] While these changes are a welcome improvement, they still leave the door open to considering acquitted conduct in sentencing in many circumstances.

We need to go further. Congress should give life to the individual rights embedded in the Fifth and Sixth Amendments by eliminating the practice altogether.

In a positive step, a coalition of Democrats and Republicans introduced a bill to end this practice last year. The bipartisan bill, called the Prohibiting Punishment of Acquitted Conduct Act, would prohibit federal judges from considering conduct for which an individual was acquitted, unless consideration of the conduct would reduce the sentence.[4]

An identical bill passed the U.S. House of Representatives in the last Congress by a vote of 405 to 12. The bill recently passed the House Judiciary Committee unanimously. The Senate should now pass this bipartisan bill.

Punishing people for acquitted conduct is part of a much larger problem. This practice is one aspect of a much larger issue that is, in fact, the ghost in the modern criminal legal system: punishing people for exercising their right to trial.

On average, people who go to trial face sentences that are three times longer than those who plead guilty, and often, the difference is much higher. This differential can be so extreme that it becomes coercive, driving even innocent people — people who are later fully exonerated — into "admitting guilt" for acts that they knew they did not commit in order to avoid severe post-trial sentences.

Unsurprisingly, this degree of coercion has virtually wiped trials off the map, converting our much-revered jury trial system into an assembly line of guilty pleas. In fact, less than 3% of convictions in the federal system are the result of trials.[5] The numbers are similar in state systems.

Jury trials — and respect for jury verdicts — protect each of us, our families and our communities. Unjust technicalities like sentencing for acquitted conduct undermine the role of juries and our bedrock founding principle that people should not be punished until proven guilty.

While undoing the trial penalty will require many changes and more judicial resources, reversing this one practice is an immediately achievable step toward a justice system worthiest of our highest ideals.

Marc Levin is chief policy counsel at the Council on Criminal Justice. He is a member of the executive committee at the End the Trial Penalty Coalition.

Martín Antonio Sabelli is an attorney at the Law Offices of Martín Antonio Sabelli and past president at the National Association of Criminal Defense Lawyers. He is a member of the executive committee at the End the Trial Penalty Coalition.

"Perspectives" is a regular feature written by guest authors on access to justice issues. To pitch article ideas, email

The opinions expressed are those of the author(s) and do not necessarily reflect the views of their employer, its clients, or Portfolio Media Inc., or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.






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