Should Judges Base Sentences On “Acquitted Conduct”?


A Washington, D.C., juror was furious that prosecutors wanted a 40-year prison term for a defendant based partly on many charges on which he had been acquitted. Quoting a letter from “Juror No. 6,” judges and attorneys are citing the juror in railing against a little-known practice called acquitted conduct sentencing, reports the Washington Times. The policy lets federal judges mete out tougher sentences based “acquitted conduct.” “It undermines public respect for the law when a judge overrides a jury acquittal,” said Sixth Circuit U.S. Court of Appeals Judge Gilbert Merritt.

Not everyone agrees. Many judges hold that acquitted conduct sentencing is widely accepted; judges can take all sorts of conduct into account when sentencing a defendant,as long as the sentence falls within the minimum and maximum terms allowed under the law. Former federal prosecutor William Otis of Virginia said courts have long allowed acquitted conduct sentencing. “Judges decide what the sentence should be, based on a variety of factors that are never charged much less proven,” he said. “An acquittal doesn’t mean a defendant didn’t do it.”

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