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


The sun sets on the U.S. Supreme Court in Washington, U.S., January 26, 2022. REUTERS/Joshua Roberts/File Photo

A U.S. government panel tasked with crafting federal sentencing policy on Thursday proposed curtailing the ability of judges to impose longer sentences on criminal defendants based on conduct for which they were acquitted at trial, a practice that the U.S. Supreme Court is considering addressing.

The bipartisan U.S. Sentencing Commission unanimously voted to publish for public comment a proposed amendment to federal sentencing guidelines relied upon by judges nationally that would limit them from considering a defendant’s “acquitted conduct.” The action is a key step toward adopting the change.

The vote came a day before U.S. Supreme Court justices were scheduled to meet privately to consider hearing, among other cases, four different appeals by criminal defendants urging them to end to this common judicial practice.

Comments are due by March 14. The U.S. Justice Department declined to comment on the Sentencing Commission’s proposal.

It was one of a slew of proposed amendments the panel put forward including one of its top priorities – implementing a major 2018 criminal justice reform law and, in the process, clarifying when defendants are eligible for compassionate release from incarceration.

The panel lost its quorum – a sufficient membership to allow it to craft policy – a month after Republican then-President Donald Trump in 2018 signed into law the First Step Act, bipartisan legislation aimed at easing harsh sentencing for nonviolent offenders and at reducing recidivism.

The Senate in August confirmed seven new bipartisan members nominated by Democratic President Joe Biden, giving the panel little time to work before a May 1 deadline to submit any guidelines amendments to Congress.

The U.S. Supreme Court in 1997 held that a jury’s verdict of acquittal does not prevent a judge at sentencing from considering conduct underlying the acquitted charge.

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.

Some U.S. lawmakers and defense lawyers have criticized the practice as unfair and a potential violation of defendants’ civil rights. Some members of the judiciary including current Supreme Court justices have questioned it. In 2014, Justices Antonin Scalia, Clarence Thomas and Ruth Bader Ginsburg dissented from the court’s decision to not take up the issue in a case.

While Scalia and Ginsburg have since died, Thomas remains on the court. Justices Neil Gorsuch and Brett Kavanaugh when they served on lower courts wrote opinions that raised concerns about the practice.

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