The practice of “acquitted conduct sentencing” was criticized in the National Law Journal. In 2005, Mark Hurn of Madison, Wi., was found guilty on one drug charge but was acquitted on a more serious charge of crack cocaine possession. Yet he was sentenced on the basis of the crack charge: 17 1/2 years in prison compared to the 2 1/2 he would have received on the other charge, says New York lawyer and adjunct law Prof. Harlan Protass. The U.S. Court of Appeals for the Seventh Circuit recently upheld the higher sentence.
Protass complains that such “acquitted conduct sentencing,” sentences based on conduct of which defendants have been found not guilty are authorized, is routinely upheld by courts. Says Protass: “Nothing could more deeply shake a defendant’s confidence in the justice system than a prison sentence based on crimes for which he or she was found not guilty.” He argues that “acquitted conduct sentencing effectively ifies jury verdicts and allows judges to usurp the jury’s fact-finding role.” The justification for such penalties, he says, is based on the idea that judges can take into account facts proved by a preponderance of the evidence, “a standard that falls far short of beyond a reasonable doubt.”