Acquitted but Not Forgotten: On the Ethics of Acquitted Conduct Sentencing

On March 28th, 2022, the House of Congress was addressed by Congressman Steve Cohen (TN-09), Chairman of the Judiciary Subcommittee on the Constitution, Civil Rights, and Civil Liberties. The topic of the address was the legality of a practice called Acquitted Conduct Sentencing. Acquitted Conduct Sentencing is the practice of a judge increasing the penalty for a crime based on facts about the defendant’s past — specifically, facts about crimes the defendant was charged with, but later acquitted of. Perhaps surprisingly, such a practice is not only legal, but relatively common. For example, in 2019 Erick Osby of Virginia was charged with seven counts of criminal activity related to the possession of illegal narcotics and firearms. He was acquitted of all but two of the charges, which should have resulted in a prison sentence of between 24-30 months. The district court trying him, however, estimated a range of 87-108 months due to the five other charges of which he was acquitted. Osby ended up receiving an 84-month (7-year) prison sentence.

In his remarks, Congressman Cohen, along with the co-author of his bill, Kelly Armstrong (Congressional Representative for North Dakota at large), presented arguments to Congress for making Acquitted Conduct Sentencing an illegal practice. The reasoning is fairly straight-forward: if someone is charged with a crime but later acquitted, that acquittal seems to say that they cannot legally be punished for that particular charge. But when sentences are expanded — even, in some cases, tripled — fines are raised, or obligatory service is extended, due to the charges the defendant has been acquitted of, it certainly seems as though the acquittal was meaningless. Cohen’s argument, then, is clear: if we acquit someone of a charge, they should be fully acquitted, meaning those charges should not have any bearing on the sentence handed down to the defendant.

Still, the question of acquitted conduct sentencing is not quite as straightforward as that. Juries and judges need to make their decisions on a host of factors, some of which have to do with facts known about the defendant’s character as well as predictions about how likely they may be to reoffend. These are not easy decisions to make, and it is further complicated by the ambiguity of what counts as legally-admissible evidence. Acquitting someone of a charge does not entail that no facts relevant to the original charge can be used in the trial. In many cases, it is difficult to say how such evidence should be treated. For example, a charge that was acquitted because of police mishandling evidence may be discussed during witness testimony. That testimony, and facts about the defendant’s character and behavior, seems (at least in some cases) hard to ignore when considering fair and effective sentencing for other charges. Acquittal, after all, does not mean that the defendant is not guilty of the crime, only that they cannot be legally charged for it. This could be for a variety of reasons.

Of course, we know that there are many instances of people being charged with a crime that they are innocent of. Mistaken charges happen all the time. Judges and juries may be privy to the original charge, and the later acquittal, but may not know the reason for the acquittal. Acquitted conduct sentencing allows defendants in this position to suffer the consequences of someone else’s error. Because the people making these legal decisions often have limited, or at least imperfect, access to all of the relevant information, allowing for acquitted conduct sentencing is guaranteed to allow cases like this to (in some cases, massively) increase the sentences for these defendants.

So, how should we think about the ethics of acquitted conduct sentencing? Purely consequentialist reasoning may lead us to conclude that we should look at the statistics: what percentage of acquittals are due to innocence, and what percentage are due to bureaucratic missteps? Perhaps the answer to this question will tell us whether allowing or prohibiting acquitted conduct sentencing would be expected to generally maximize good outcomes. This of course would be based on the presumption that, if someone is genuinely guilty of the crime for which they are acquitted, then adjusting their sentence in light of any relevant facts of the acquitted charge would be best for preventing future harm. But this assumption may, of course, itself be mistaken.

Instead, maybe a just outcome depends on more factors than simply maximizing happiness or minimizing harm. The idea of fairness as a desirable outcome of justice, for instance, is a popular one. We might think about the issue of acquitted conduct sentencing as a question of where the locus of justice lies: is a procedure of justice fair in virtue of the procedure itself, or is it fair just in case the outcomes of the procedure are generally fair? John Rawls, one of the most influential political philosophers of the modern era, argued that what he called perfect procedural justice has two characteristics: (1) criteria for what constitutes a just outcome of the particular procedure, and (2) the particular procedure guarantees that a perfect outcome will be achieved. Of course, such perfection is often unattainable in real life, and we might think that the best we can aim for is imperfect procedural justice: where criteria (1) is met, but the procedure cannot guarantee a perfect outcome. Can our current sentencing procedure meet Rawls’ first characteristic? Does it give us an idea of what counts as a just outcome of sentencing? The answer is unclear.

Further, we might question whether outcomes are relevant at all for justice. As a pluralistic society, we might expect there to be wildly-differing views about what counts as a fair outcome. But what counts as an impartial (if not fair) procedure is likely less controversial. For example, when healthcare resources are very scarce, some institutions use random-lottery (or weighted-lottery) decision procedures to determine who gets the resources and who does not. Even if the outcome seems “unfair” (because not everybody who needs the resource will receive it) it is hard to contest that everyone had a fair shot at the prize. Not everyone agrees that lotteries are just procedures, but they at least appear to be impartial. Perhaps this is enough to secure procedural justice? The view that the procedure alone, and not the outcome, determines the fairness of a procedural process, is what Rawls calls pure procedural justice.

Is the procedure of acquitted conduct sentencing fair? Perhaps an easier question: is it impartial? Likely not. After all, implicit (or explicit) bias can easily result in someone being charged for a crime they did not commit. Those who are members of marginalized groups, then, have a much higher risk of having their sentences expanded due to crimes they did not commit. The procedure is far from impartial, and so the likelihood that it could be a part of a just procedural process appears to be low. While we certainly want judges to have as much relevant information on a case as possible when handing down a sentence, perhaps we can agree with Congressman Cohen that acquitted conduct sentencing is not the way to accomplish this goal.