U.S. Justice Department urges panel not to limit 'acquitted conduct' sentencings

Jessica Aber
Jessica Aber, the U.S. Attorney for the Eastern District of Virginia, testifies before the U.S. Sentencing Commission in Washington, D.C., on February 24, 2023. U.S. Sentencing Commission/Handout via REUTERS
  • Department of Justice official calls Sentencing Commission proposal "unworkable"
  • Supreme Court considering whether to take up acquitted conduct issue

(Reuters) - The U.S. Department of Justice is opposing a bipartisan panel's proposal to curtail federal judges' ability to impose longer prison sentences on criminal defendants based on conduct for which they were acquitted at trial.

Jessica Aber, the U.S. attorney for the Eastern District of Virginia, told the U.S. Sentencing Commission during a Friday hearing that its proposal to amend federal sentencing guidelines would go too far in limiting what conduct judges could consider.

"Curtailing courts' discretion to consider conduct related to acquitted counts would be a significant departure from long-standing sentencing practice, Supreme Court precedent and the principles of our guidelines," she said.

The commission, which is tasked with crafting sentencing policy, in January proposed barring acquitted conduct from being considered when judges calculate what range of prison time a defendant faces under federal sentencing guidelines.

The panel faces a May 1 deadline to submit amendments to the guidelines to Congress.

Several cases are pending before the U.S. Supreme Court to bring an end to the practice on grounds it did not consider in 1997, when it held that taking acquitted conduct into account at sentencing does not violate the double jeopardy clause of the U.S. Constitution's Fifth Amendment.

Judges may do so because while juries must consider whether a criminal charge is proven beyond a reasonable doubt, judges at sentencing may consider whether facts are proven based on a preponderance of the evidence, a lower standard of proof.

At Friday's hearing, Aber argued the commission's proposed limits on the practice "will result in sentences that fail to account for the full range of a defendant's conduct."

But several members of the seven-member bipartisan commission, who were all appointed by Democratic President Joe Biden last year, questioned why they should not place limits on a practice that has bothered judges, defense lawyers, lawmakers and the public for years.

U.S. District Judge Claria Horn Boom, an appointee of former Republican President Donald Trump who sits in Kentucky, said most people "recoil" at the idea of a judge increasing someone's sentence notwithstanding a not guilty verdict.

"Even if I agree with your technical arguments, isn't there a public confidence component that could be served by the amendment?" she asked Aber.

U.S. District Judge Carlton Reeves, an appointee of former Democratic President Barack Obama who sits in Mississippi and chairs the panel, suggested the practice turns a judge into a "super juror" who can "disregard whatever the government has failed to prove, or whatever the jury has rejected."

Read more:

U.S. Justice Department tells panel changes in law don't warrant cutting sentences

U.S. panel proposes limiting sentencing of defendants for acquitted conduct

Newly-reconstituted U.S. sentencing panel finalizes reform priorities

Biden's sentencing panel noms vow to implement criminal justice reform law

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Nate Raymond reports on the federal judiciary and litigation. He can be reached at nate.raymond@thomsonreuters.com.