Bipartisan Prohibiting Punishment of Acquitted Conduct Act of 2019 Introduced in the Senate

September 30, 2019

As many familiar with our federal sentencing scheme are aware, many federal defendants who proceed to trial and are acquitted of some but not all of the charges can and will be sentenced AS IF they were not acquitted of those charges. So for instance, in a multi count indictment alleging one count of tax fraud and one count of money laundering, if the defendant proceeds to trial and is convicted of the tax fraud claim, but acquitted by a judge or jury on the money laundering count, that person can be sentencing as if he was convicted on both counts. More commonly, in drug cases the government alleges a “possession with intent to distribute” count under 21 U.S.C. §841 along with a “conspiracy” count under 21 U.S.C. §846. Drug case sentences are largely driven by the quantity of drugs involved and the quantity of drugs involved in a conspiracy is always significantly higher than involved in a possession case. Thus, for a defendant that proceeds to trial on such charges and is acquitted of the conspiracy and convicted of only the possession charge, they can still be sentenced as if they were convicted of the conspiracy nonetheless and be held criminally accountable for all of the drugs involved in the entire conspiracy. See, e.g. United States v. Jones, 744 F.3d 1362 (D.C. Cir. 2014) This practice has been upheld by many Circuit courts (and ignored by the Supreme Court) and is a common practice, although severely criticized by many including the late Supreme Court Justice Antonin Scalia. Recently, a bipartisan bill, Prohibiting Punishment of Acquitted Conduct Act of 2019, was introduced by Senators Grassley and Durbin. This bill, if ultimately passed, would end the practice by:

Amending 18 U.S.C. § 3661 to preclude a court of the United States from considering, except for purposes of mitigating a sentence, acquitted conduct at sentencing, and

Defining “acquitted conduct” to include acts for which a person was criminally charged and adjudicated not guilty after trial in a Federal, State, Tribal, or Juvenile court, or acts underlying a criminal charge or juvenile information dismissed upon a motion for acquittal.

Of course, now is the time to write your Senators and Congresspersons to show your support for this very important bill and urge their support as well. If you need more information about compassionate release feel free to contact us at or at our office.