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Not Guilty but Punished Anyway

by Douglas Ankney

Many people are aware that Pilate found Jesus “not guilty,” but Jesus was sentenced to death anyway. Fortunately, the American system of justice doesn’t permit such outcomes. Or does it?

According to, federal judges can — and often do — use what is called “acquitted conduct” when sentencing defendants. As an example, suppose you are charged with three murders and a robbery, but the jury acquits you of all charges except the robbery. The prosecutor will still argue to the court that, based on a preponderance of the evidence, the judge should consider your conduct in the murders when determining your sentence for the robbery. This provides a perverse incentive for prosecutors to charge more serious offenses they know they cannot prove. As in the example, the prosecutor charges you with three murders as leverage to get you to plead guilty to the maximum sentence for robbery in exchange for dropping the murder charges. But if you refuse the plea offer, then the prosecutor still wins because he will argue that the judge should consider the acquitted conduct and sentence you to the maximum term for the robbery.

Senators Dick Durbin (D-Ill.) and Chuck Grassley (R-Iowa) introduced a bill in September 2019, amending the federal criminal code “to preclude any court of the United States from considering, except for purposes of mitigating a sentence, acquitted conduct at sentencing.”

The bill defines acquitted conduct as “acts for which a person was criminally charged and adjudicated not guilty after trial in a Federal, State, Tribal, or Juvenile court, or acts underlying a criminal charge or juvenile information dismissed upon a motion for acquittal.”

The bill has received wide bipartisan support from diverse groups such as Americans for Prosperity, the American Conservative Union, Americans for Tax Reform, FreedomWorks, Prison Fellowship, the R Street Institute, Right on Crime, and Koch Industries.

While it’s easy to see why the bill has tremendous support, it’s not so easy to understand why the practice even exists. But the answer hides in plain sight. Prosecutors are cloaked with almost unlimited power in choosing who to prosecute and for what. And this is simply another arrow in their quiver. Hopefully, it will soon be a broken arrow. 



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