Americans for Tax Reform, along with 23 other organizations, signed a letter in support of the Prohibiting Punishment of Acquitted Conduct Act of 2019. The bill would strengthen the protections provided by the Constitution by abolishing the fundamentally unfair practice of sentencing defendants for acts they were acquitted of by a jury.

You can read the letter below and linked to here.

September 26, 2019

The Honorable Lindsey Graham
Committee on the Judiciary
U.S. Senate

Washington, D.C. 20515

The Honorable Dianne Feinstein
Ranking Member
Committee on the Judiciary
U.S. Senate

Washington, D.C. 20515

Re: Prohibiting Punishment of Acquitted Conduct Act of 2019

Dear Chairman Graham and Ranking Member Feinstein:

The undersigned organizations write in support of the Prohibiting Punishment of Acquitted Conduct Act of 2019, which was introduced this week by Senators Durbin and Grassley, and cosponsored by Senators Leahy, Tillis, Booker, and Lee. This bill would end the unjust practice of judges increasing sentences based on conduct for which a defendant has been acquitted by a jury.

The Fifth and Sixth Amendment guarantees of due process and the right to trial by jury for those accused of a crime are fundamental to our criminal justice system. These guarantees require the government to prove a defendant’s guilt to a jury beyond a reasonable doubt. 

Despite this, current federal law allows judges to override a jury’s not guilty verdict by sentencing a defendant for the very conduct he or she was acquitted of by the jury. This is because the law requires a jury to convict beyond a reasonable doubt, but allows a judge to impose sentencing enhancements based on the less demanding standard of preponderance of the evidence. 

Permitting sentencing based on acquitted conduct is unjust, undermines due process, and subverts the critical function of jury trials in our legal system. This practice has been roundly criticized by practitioners, judges, and scholars. In one case, three defendants were convicted of possessing small amounts of crack cocaine, but were acquitted by the jury on conspiracy to distribute charges. Nevertheless, the judge increased their sentences based on them engaging in a conspiracy. Though the Supreme Court did not take the case, Justice Scalia, joined by Justice Ginsburg and Justice Thomas, stated that the practice of sentencing based on acquitted conduct “has gone on long enough” and constituted a likely violation of the Sixth Amendment. Additionally, former Judiciary Committee Chairman Hatch introduced the original version of this bill in 2018, and has persuasively argued that justice depends on conviction by a jury, not a judge. 

Allowing acquitted conduct to be considered in sentencing also exacerbates the trial penalty, which is generally manifested in the significant difference in sentence between what a defendant receives via plea bargain and what his or her sentence would be if convicted at trial. This trial penalty has virtually eliminated the constitutional right to a trial in the federal system. It also contributes to the possibility of innocent people pleading guilty, because they fear the long and harsh sentence they would receive if convicted at trial, even if the chance of conviction is remote. Unsurprisingly, the crucial constitutional protection that the right to trial by jury provides is weakened when a defendant may be sentenced based on conduct even when he or she is acquitted of that conduct by a jury. This contributes to coercive plea bargaining and to the trial penalty. 

We urge you to support this bill, which would eliminate an unjust practice and would strengthen the protections our Constitution provides. 

If you have further questions, feel free to contact Nathan Pysno, Director of Economic Crime and Procedural Justice at the National Association of Criminal Defense Lawyers, at 202- 465-7627 or [email protected]


National Association of Criminal Defense Lawyers 


Aleph Institute 

American Civil Liberties Union 

American Conservative Union 

ALEC Action 

Americans for Prosperity 

Americans for Tax Reform 

Church of Scientology National Affairs Office 

Digital Liberty 

Drug Policy Alliance 

Due Process Institute 

Fair Trials 

Faith and Freedom Coalition 


Federal Public and Community Defenders 

Innocence Project 

National Legal Aid & Defender Association 

Prison Fellowship 

R Street Institute 

Right on Crime 

The Sentencing Project 

Texas Public Policy Foundation 

Tzedek Association