Senators Introduce Prohibiting Punishment of Acquitted Conduct Act

The United States Senate has bought forth a bill that would prevent courts from sentencing accused persons with acquitted conduct.

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On March 4, 2021 several United States Senators including U.S. Senate Majority Whip Dick Durbin (D-IL), Chair of the Senate Judiciary Committee, and Senator Chuck Grassley (R-IA), Ranking Member of the Senate Judiciary Committee, introduced the Prohibiting Punishment of Acquitted Conduct Act of 2021.  The press release from the Senate Judiciary Committee indicaed that “U.S. Representatives Steve Cohen (D-TN-09) and Kelly Armstrong (R-ND) plan to introduce House companion legislation [the following] week.” 

The text of this bill is short enough to post here in its entirety:

The Proposed Text of the Bill: Prohibiting Punishment of Acquitted Conduct


To amend section 3661 of title 18, United States Code, to prohibit the consideration of acquitted conduct at sentencing.

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,


This Act may be cited as the ‘‘Prohibiting Punishment of Acquitted Conduct Act of 2021’’.


(1) AMENDMENT.—Section 3661 of title 18, United States Code, is amended by inserting ‘‘,except that a court of the United States shall not consider, except for purposes of mitigating a sentence, acquitted conduct under this section’’ before the period at the end.

(2) APPLICABILITY.—The amendment made by paragraph (1) shall apply only to a judgment entered on or after the date of enactment of this Act.

(b) DEFINITIONS.—Section 3673 of title 18, United States Code, is amended—

(1) in the matter preceding paragraph (1), by striking ‘‘As’’ and inserting the following:

‘‘(a) As’’; and

(2) by adding at the end the following:

‘‘(b) As used in this chapter, the term ‘acquitted conduct’ means—

‘‘(1) an act—

‘‘(A) for which a person was criminally charged and adjudicated not guilty after trial in a Federal, State, or Tribal court; or

‘‘(B) in the case of a juvenile, that was charged and for which the juvenile was found not responsible after a juvenile adjudication hearing; or  

‘‘(2) any act underlying a criminal charge or juvenile information dismissed—

‘‘(A) in a Federal court upon a motion for acquittal under rule 29 of the Federal Rules of Criminal Procedure; or

‘‘(B) in a State or Tribal court upon a motion for acquittal or an analogous motion under the applicable State or Tribal rule of criminal procedure.’’.

Explanation of the Bill

So as many of you might know, 18 USC 3661 says this: 

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.

So the purpose of this bill would be that a court could consider everything except for acquitted conduct.  As you might surmise one of the most prevalent places for this is in drug cases.  In fact, the press release for this act explains one such case:

“One prominent example of this unjust practice is the 2005 case of Antwuan Ball, who, along with his co-defendants, was convicted of distributing a few grams of crack cocaine, but acquitted of conspiring to distribute drugs.   Despite this, the sentencing judge held Mr. Ball responsible for the conspiracy, nearly quadrupling his sentence to 19 years. Mr. Ball asked the Supreme Court to consider his case, but the Court denied the petition for the writ of certiorari. Justice Scalia wrote a blistering dissent, joined by Justices Ginsburg and Thomas, noting that “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.”  Scalia decried the practice, writing that, “this has gone on long enough.”

There are a couple of things of note here. First, the way that this appears to be written only applies to situations where the accused person goes to trial.  The text does not appear to apply to plea cases.  Also, the text does not appear to apply retroactively.  But as we have seen, as long as the United States Sentencing Commission has not ruled otherwise, incarcerated persons may be able to file a 3582 motion for reduction in sentence in order to receive the benefits. 

The fact that these bills are starting off in the Senate and the current makeup of the Senate makes me hopeful that these bills make it through.  In fact, although it would be inappropriate to make a prediction, I can say that I am more hopeful about it than I have been in recent years. 

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