Chairman Nadler Statement for the Markup of H.R. 1621, the Prohibiting Punishment of Acquitted Conduct Act of 2021
Washington, November 17, 2021
Washington, D.C. - Today, House Judiciary Committee Chairman Jerrold Nadler (D-NY) delivered the following opening statement, as prepared, during the markup of H.R. 1621, the Prohibiting Punishment of Acquitted Conduct Act of 2021:
"H.R. 1621 the 'Prohibiting Punishment of Acquitted Conduct Act of 2021,' is an important measure to end the practice of federal judges increasing sentences based on conduct for which a defendant has been found not guilty by a jury. This bipartisan bill, introduced by Steve Cohen, the Chair of the Constitution, Civil Rights, and Civil Liberties Subcommittee, specifically prohibits the consideration of acquitted conduct at sentencing, if not for mitigation purposes.
"In order to convict any defendant of a crime, the Constitution requires that the Government prove that defendant’s guilt beyond a reasonable doubt. The Sixth Amendment right to a trial by jury and the Fifth Amendment’s Due Process Clause require that each element of a crime charged against a defendant be either admitted by the defendant or proven to the jury beyond a reasonable doubt.
"Despite these foundational guarantees, federal law allows judges—in effect—to override a jury’s verdict of not guilty and to sentence defendants for acquitted conduct.
"Current law bars any limitation on the conduct a sentencing court may consider for the purpose of imposing punishment; and the 'Relevant Conduct' provision of the U.S. Sentencing Guidelines allows a sentencing court to consider a range of factors, including acquitted conduct. Based on this guidance, federal judges may enhance sentences if they find, by a preponderance of the evidence—a lower evidentiary standard than required at the guilt-innocence phase—that a defendant committed other offenses.
"Although the Supreme Court has passed on considering this issue to date, the late Justice Scalia provided a scathing critique of the practice in his dissent in Jones v. United States.
"Joined by Justices Thomas and Ginsberg, Justice Scalia said that the petitioners presented 'a strong case that, but for the judge’s finding of fact, their sentences would have been 'substantively unreasonable.''
"In that case, the Court declined to hear a case in which three defendants were found guilty of distributing small amounts of crack but were sentenced as if they were convicted of a much larger conspiracy to distribute drugs, for which they were charged but found not guilty at trial. While the Sentencing Guidelines recommended penalties ranging from 27 to 71 months for the charge each defendant was convicted of, the defendants were sentenced to 180, 194, and 225 months—punishing them almost four times more harshly for conduct the Government could not prove at trial.
"This practice is fundamentally unfair, and as Justice Scalia said, 'this has gone on long enough.'
"The failure to address this issue for so many years has contributed to the epidemics of overincarceration and mass incarceration, weakened the finality that a jury trial is meant to provide, and undermined overall public confidence in our justice system. Therefore, today we consider a simple, narrowly tailored bill that builds on our bipartisan efforts to create a fairer justice system.
"This legislation amends current law to preclude judges from considering acquitted conduct—except for the purpose of mitigating a sentence. The bill will make sure that defendants are punished only for the conduct that prosecutors are able to prove at trial, consistent with the Constitutional guarantees of due process and the right to a trial by a jury of their peers, and consistent with the principles on which this country was founded.
"A broad coalition of advocates support this significant, but modest legislation, including R Street Institute, the ACLU, The Innocence Project, Brennan Center for Justice, the American Bar Association, Families Against Mandatory Minimums, the Leadership Conference on Civil and Human Rights, and Federal Public & Community Defenders."I thank our colleague, Representative Steve Cohen, for his commitment to justice and for leading this effort by introducing H.R. 1621 alongside Representative Kelly Armstrong, and I urge all of my colleagues to support this bipartisan legislation."