[Congressional Record Volume 168, Number 54 (Monday, March 28, 2022)]
[House]
[Pages H3880-H3883]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




        PROHIBITING PUNISHMENT OF ACQUITTED CONDUCT ACT OF 2021

  Ms. JACKSON LEE. Mr. Speaker, I move to suspend the rules and pass 
the bill (H.R. 1621) to amend section 3661 of title 18, United States 
Code, to prohibit the consideration of acquitted conduct at sentencing, 
as amended.
  The Clerk read the title of the bill.
  The text of the bill is as follows:

                               H.R. 1621

       Be it enacted by the Senate and House of Representatives of 
     the United States of America in Congress assembled,

     SECTION 1. SHORT TITLE.

       This Act may be cited as the ``Prohibiting Punishment of 
     Acquitted Conduct Act of 2021''.

     SEC. 2. ACQUITTED CONDUCT AT SENTENCING.

       (a) Use of Information for Sentencing.--
       (1) Amendment.--Section 3661 of title 18, United States 
     Code, is amended by inserting ``, except that a court of the 
     United States shall not consider, except for purposes of 
     mitigating a sentence, acquitted conduct under this section'' 
     before the period at the end.
       (2) Applicability.--The amendment made by paragraph (1) 
     shall apply only to a judgment entered on or after the date 
     of enactment of this Act.
       (b) Definitions.--Section 3673 of title 18, United States 
     Code, is amended--
       (1) in the matter preceding paragraph (1), by striking 
     ``As'' and inserting the following:
       ``(a) As''; and
       (2) by adding at the end the following:
       ``(b) As used in this chapter, the term `acquitted conduct' 
     means--
       ``(1) an act--
       ``(A) for which a person was criminally charged and with 
     regard to which--
       ``(i) that person was adjudicated not guilty after trial in 
     a Federal, State, or Tribal court; or
       ``(ii) any favorable disposition to the person in any prior 
     charge was made, regardless of whether the disposition was 
     pretrial, at trial, or post trial; or
       ``(B) in the case of a juvenile, that was charged and for 
     which the juvenile was found not responsible after a juvenile 
     adjudication hearing; or
       ``(2) any act underlying a criminal charge or juvenile 
     information dismissed--
       ``(A) in a Federal court upon a motion for acquittal under 
     rule 29 of the Federal Rules of Criminal Procedure; or
       ``(B) in a State or Tribal court upon a motion for 
     acquittal or an analogous motion under the applicable State 
     or Tribal rule of criminal procedure.''.

     SEC. 3. DETERMINATION OF BUDGETARY EFFECTS.

       The budgetary effects of this Act, for the purpose of 
     complying with the Statutory Pay-As-You-Go Act of 2010, shall 
     be determined by reference to the latest statement titled 
     ``Budgetary Effects of PAYGO Legislation'' for this Act, 
     submitted for printing in the Congressional Record by the 
     Chairman of the House Budget Committee, provided that such 
     statement has been submitted prior to the vote on passage.

  The SPEAKER pro tempore. Pursuant to the rule, the gentlewoman from 
Texas (Ms. Jackson Lee) and the gentleman from Oregon (Mr. Bentz) each 
will control 20 minutes.
  The Chair recognizes the gentlewoman from Texas.


                             General Leave

  Ms. JACKSON LEE. Mr. Speaker, I ask unanimous consent that all 
Members have 5 legislative days to revise and extend their remarks and 
include extraneous materials on H.R. 1621.
  The SPEAKER pro tempore. Is there objection to the request of the 
gentlewoman from Texas?
  There was no objection.
  Ms. JACKSON LEE. I yield myself such time as I may consume.
  Mr. Speaker, I am very proud to support H.R. 1621, the Prohibiting 
Punishment of Acquitted Conduct Act, which offers a solution to a long-
identified problem within our criminal justice system.
  This bill provides necessary reform to current Federal sentencing 
practice that allows judges to sentence defendants based on conduct for 
which a jury has found them not guilty.
  The Sixth Amendment to the Constitution provides that anyone accused 
of a crime shall enjoy the right to a speedy and public jury trial, 
while the Fifth Amendment provides that no person shall be deprived of 
life, liberty, or property, without due process of law.
  These provisions mean that the government is bound to move each and 
every element of an offense for which a defendant is charged beyond a 
reasonable doubt during a jury trial, or that defendant must admit each 
element of an offense to support a plea of guilty. Absent that, those 
offenses are not found guilty, if you will, to the individual.
  Notwithstanding this constitutional obligation, Federal judges 
routinely nullify not guilty verdicts rendered by juries and sentence 
defendants to significantly higher penalties based on acquitted 
conduct.
  In its current form, 18 U.S.C. 3661 prohibits any limitation of the 
conduct a judge may consider when sentencing a defendant, even when a 
jury has determined that there was insufficient evidence to prove the 
defendant committed the charged offense; it seems clearly a 
constitutional violation.
  Additionally, under the concept of ``relevant conduct,'' the U.S. 
Sentencing Guidelines allow judges to consider a range of conduct, 
including dismissed charges, uncharged conduct, and acquitted conduct 
when imposing sentences. Again, might I say, seemingly a very unfair 
direction given without limitations, and certainly without adherence to 
the constitutional amendments.
  The fact-finding made by judges at sentencing is based on a lower 
evidentiary standard than at trial--that is, by a preponderance of 
evidence--which many scholars defined as a 50 percent chance that a 
claim is true.
  The reform proposed in this bill ensures that judges punish 
defendants on facts proven beyond a reasonable doubt, criminal 
standard, the higher evidentiary standard of proof required during a 
jury trial, which some scholars attach a value of 90 to 95 percent 
surety.
  Justice Ginsberg, a moderate liberal who became more liberal in later 
years, joined Justice Thomas and Justice Scalia, a staunch 
conservative, in his dissent in Jones v. United States, lamenting the 
failure of the Court to determine if the Sixth Amendment is violated 
when judges impose sentences based solely on judge-found facts.
  While the Sentencing Guidelines suggested prison sentences from 27 to 
71 months for the three defendants in the case, the trial judge 
imposed--if you can believe it--overwhelming sentences of 180, 194, and 
225 months, based on the conduct the prosecution failed to prove.
  Justice Scalia's often-quoted dissent was issued more than 7 years 
ago. Yet nothing has been done about this unjust, undemocratic practice 
and, really, unconstitutional, which diminishes the sanctity of the 
jury trial, the standard of reasonable doubt, which any layman can tell 
you. When you ask them what the standard is for proving guilt or 
innocence in a criminal trial, everybody knows the words, ``with 
reasonable doubt.''
  Can you imagine? That is not the case.

[[Page H3881]]

  The public check on the government's power and the overall integrity 
of the criminal justice system must be maintained.
  H.R. 1621 would restore fairness to jury trials by amending Section 
3661 to ban consideration of acquitted conduct at sentencing unless the 
conduct is considered for mitigation purposes.
  Though I wish we were doing more to advance substantive criminal 
justice reform, I am happy to support this bipartisan bill that 
addresses an acute need while restoring the basic propositions of due 
process and the right to a trial by jury.
  I want to express enthusiastic support and appreciation to 
Representative   Steve Cohen, chair of the Subcommittee on the 
Constitution, Civil Rights and Civil Liberties, for his commitment to 
justice and for taking the lead on this significant, bipartisan bill, 
along with Representative Kelly Armstrong.
  A broad coalition of advocates support this measure, 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 the 
Federal Public and Community Defenders.
  It is for that reason I hope that the Senate will take up this bill 
and pass the House version as soon as possible.
  I ask my colleagues to support this bill and to continue working on 
additional measures to make our justice system more equitable and more 
transparent. I look forward to coming to the floor with those 
initiatives.
  Mr. Speaker, I reserve the balance of my time.
  Mr. BENTZ. Mr. Speaker, I yield myself such time as I may consume.
  Mr. Speaker, I rise in support of H.R. 1621, the Prohibiting 
Punishment of Acquitted Conduct Act of 2021.
  The Sixth Amendment of the Constitution ensures that criminal 
defendants have the right to a trial by jury. This right is so 
important that our Founding Fathers preserved it in the Bill of Rights. 
It is a hallmark of our great country and one of the many things that 
separates us from other countries.
  Our commitment to trial by jury means we accept the jury's decision 
whether we agree with it or not.
  This bill would prohibit Federal judges from increasing a defendant's 
sentence based on conduct for which the defendant had been acquitted by 
a jury.
  In 1987, the United States Sentencing Commission established Federal 
sentencing guidelines. These guidelines allow judges to consider 
conduct that was not formally charged or proven beyond a reasonable 
doubt at a trial, so long as the judge finds the conduct relevant by a 
preponderance of the evidence.
  There are numerous examples of this happening. Judges have intervened 
to overrule the determinations of juries and have handed down harsher 
sentences after considering conduct for which the defendants have been 
charged and acquitted.

                              {time}  1730

  Allowing judges to consider acquitted conduct punishes people for a 
crime for which they have not been convicted. It is wrong and violates 
the spirit of our Bill of Rights.
  Both Justice Kavanaugh and the late Justice Antonin Scalia recognized 
the fundamental unfairness of using acquitted conduct at sentencing. 
Both said it must stop.
  In 2015, as a judge on the U.S. Court of Appeals for the D.C. 
Circuit, then-Judge Kavanaugh wrote: ``Allowing judges to rely on 
acquitted or uncharged conduct to impose higher sentences than they 
otherwise would impose seems a dubious infringement on the rights to 
due process and to a jury trial.''
  I agree with Justice Scalia and Justice Kavanaugh.
  Mr. Speaker, I urge my colleagues to join me in supporting this bill, 
and I reserve the balance of my time.
  Ms. JACKSON LEE. Mr. Speaker, I yield 5 minutes to the gentleman from 
Tennessee (Mr. Cohen), the author of this legislation; the chairman of 
the Subcommittee on the Constitution, Civil Rights, and Civil Liberties 
of the Committee on the Judiciary; and a strong advocate for justice.
  Mr. COHEN. Mr. Speaker, first, I want to take a point of personal 
privilege. This is the first day that I have walked into the House 
without Don Young being in it.
  Don Young was an outstanding Congressman and a good human being. He 
was my friend. Every day I walked in those doors and he sat on the 
aisle, I would say hello, and we would talk. This is the first day he 
hasn't been there to say hello.
  I will join with other Members to memorialize him in the services 
tomorrow here in the Capitol and also at his church in Virginia on 
Wednesday. Mr. Young was the dean of the House, just a good human 
being, and he had a wonderful wife.
  On this bill, I want to thank Mr. Armstrong for working with me on 
it. He was a strong proponent of the bill, and it is truly bipartisan 
and bicameral. It has already passed the Senate in some form, I 
believe.
  It has been mentioned that Justice Scalia was a great proponent of 
this, as was Justice Ginsburg and Justice Kavanaugh.
  Mr. Bentz and Ms. Jackson Lee have made all the arguments. I have a 
few pages of speeches here, but there is no reason to read them. A long 
time ago, I was told if you make the sale, sit down. The sale has been 
made, I believe.
  Mr. Speaker, I urge everybody to vote ``aye.''
  I rise in strong support of H.R. 1621, the Prohibiting Punishment of 
Acquitted Conduct Act. This bill is a bipartisan, bicameral effort to 
prevent judges from punishing defendants for conduct they have not been 
found to be guilty of. I'd like to begin by thanking my co-lead on this 
bill, Congressman Kelly Armstrong, for all his hard work on this issue.
  The U.S. Constitution's Fifth and Sixth Amendments guarantee the 
right to due process and the right to a jury trial for those accused of 
a crime--these are two foundational principles meant to foster justice 
and fairness in the American criminal legal system. These rights ensure 
that we are presumed to be innocent unless and until the government 
proves a defendant's guilt to a Jury.
  Our system requires the government to prove an individual's guilt to 
a jury beyond a reasonable doubt; however, under current federal law, 
judges may impose sentencing enhancements for conduct that they find to 
have been committed based on a less demanding standard--preponderance 
of the evidence.
  The result of this discrepancy in the law is that even if a defendant 
has been found by a jury of their peers to not be guilty of a crime, a 
judge may still use and consider that conduct for the purposes of 
sentencing them. This means that people are spending time in jail for 
conduct that the government failed to prove they had committed, and a 
jury has acquitted them of.
  This is entirely antithetical to the foundational principles of our 
criminal justice system and Constitution--it not only undermines due 
process, but it undercuts the important role juries play in our 
criminal system by allowing judges to sentence individuals for conduct 
regardless of the decision of the jury.
  The Prohibiting Punishment of Acquitted Conduct Act would correct 
this inexplicable discrepancy by prohibiting the consideration of such 
acquitted conduct in sentencing by federal judges, unless being 
considered for the purpose of mitigating a sentence. This would ensure 
that no one spends time in jail for conduct prosecutors were not able 
to prove at trial.
  It does so by amending Section 3661 of Title 18 to expressly state 
that, except for purposes of mitigating a sentence, a court of the 
United States shall not consider acquitted conduct when sentencing a 
defendant.
  Ending the consideration of acquitted conduct is and should be a 
bipartisan effort--two of the fiercest champions of this policy 
position include the late Justices Ginsburg and Scalia.
  Allowing judges to continue to sentence defendants based on conduct 
they have been acquitted of demeans and diminishes due process and is a 
blatant attack on the Constitutional rights of Americans. We must 
preserve and protect these rights by passing the Prohibiting Punishment 
of Acquitted Conduct Act.
  No one should be put behind bars for something the government was 
unable to prove they did to a jury of their peers beyond a reasonable 
doubt.
  I urge all of my colleagues to join me in supporting this bicameral, 
bipartisan bill to end this un-American practice.
  Mr. BENTZ. Mr. Speaker, I yield as much time as he may consume to the 
gentleman from North Dakota (Mr. Armstrong).
  Mr. ARMSTRONG. Mr. Speaker, I rise today in support of the 
Prohibiting Punishment of Acquitted Conduct Act.

[[Page H3882]]

I thank Mr. Cohen for introducing this important legislation.
  Mr. Speaker, due process is more than an ideal. It is a fundamental 
right enshrined in our law. The Constitution confirms that right and 
explicitly ensures procedural fairness to those accused and convicted 
of crimes. Yet, the criminal justice system often grants judges with 
discretion to increase the length and severity of punishment based on 
conduct for which an individual was proven not guilty.
  We can all agree that holding criminals accountable is essential to 
law and order. However, sentencing based on acquitted conduct is an 
affront to all Americans' constitutional rights. The Prohibiting 
Punishment of Acquitted Conduct Act will bring an end to this unfair 
practice.
  This bipartisan, bicameral legislation bars judges from considering 
an individual's acquitted conduct during sentencing, except for 
purposes of mitigating a sentence.
  This bill is a crucial step toward restoring some fairness in our 
criminal justice system and commands a broad coalition of support, 
including Senate Judiciary Committee Chairman Dick Durbin, the ACLU, 
Americans for Prosperity, and the American Conservative Union.
  I thank both Chairman Nadler and Ranking Member Jordan for moving 
this bill through the Judiciary Committee.
  One last thing: Judges have a range of sentences in the sentencing 
guidelines. Prosecutors, after conviction, make recommendations. There 
is a pretrial sentencing report. Again, the sentencing can vary very 
highly up and down in that vein. There is absolutely no reason, in the 
interest of justice or fairness, where acquitted conduct needs to be 
used in sentencing offenders.
  Mr. COHEN. Will the gentleman yield?
  Mr. BENTZ. I yield to the gentleman from Tennessee.
  Mr. COHEN. Mr. Speaker, I want to say how much I enjoyed working with 
Mr. Armstrong on the Judiciary Committee.
  When I came back for the new Congress and he wasn't on the committee, 
that was a loss. But it has been good to work with him on this bill, 
and he has worked on this in the past. I appreciate it.
  Mr. Speaker, I would like to incorporate by reference everything that 
Mr. Armstrong said into my previous lack of remarks. It can be done.
  Ms. JACKSON LEE. Mr. Speaker, I reserve the balance of my time.
  Mr. BENTZ. Mr. Speaker, I urge my colleagues to support this bill, 
and I yield back the balance of my time.
  Ms. JACKSON LEE. Mr. Speaker, I yield myself the balance of my time.
  I thank the gentleman from Oregon for supporting this legislation. He 
cited a number of judges and courts who added their support to this 
important legislation.
  Mr. Cohen's eloquence was in the efforts he has made to help those 
who have suffered injustice.
  We thank Congressman Armstrong for his work as well. The fact that 
they are speaking in tandem speaks loudly on this floor.
  As I close, I include in the Record the dissenting opinion of 
Justices Scalia, Thomas, and Ginsburg, with simple comments from their 
opinion:
  ``On petitioners' appeal, the D.C. Circuit held that even if their 
sentences would have been substantively unreasonable but for judge-
found facts, their Sixth Amendment rights were not violated.''
  That was found by the D.C. Circuit.
  ``We should grant certiorari to put an end to the unbroken string of 
cases disregarding the Sixth Amendment.''
  So, you are more than affirmed that the Sixth Amendment in these 
cases is patently disregarded.
  I include in the Record the Supreme Court dissent on the Jones v. 
United States case.

                   SUPREME COURT OF THE UNITED STATES

   Joseph Jones, Desmond Thurston, and Antwuan, Ball v. United States


   ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF 
              APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT

                No. 13-10026.--Decided October 14, 2014

       The petition for a writ of certiorari is denied.
       Justice Scalia, with whom Justice Thomas and Justice 
     Ginsburg join, dissenting from denial of certiorari.
       A jury convicted petitioners Joseph Jones, Desmond 
     Thurston, and Antwuan Ball of distributing very small amounts 
     of crack cocaine, and acquitted them of conspiring to 
     distribute drugs. The sentencing judge, however, found that 
     they had engaged in the charged conspiracy and, relying 
     largely on that finding, imposed sentences that petitioners 
     say were many times longer than those the Guidelines would 
     otherwise have recommended.
       Petitioners present a strong case that, but for the judge's 
     finding of fact, their sentences would have been 
     ``substantively unreasonable'' and therefore illegal. See 
     Rita v. United States, 551 U.S. 338, 372 (2007) (Scalia, J., 
     joined by Thomas, J., concurring in part and concurring in 
     judgment). If so, their constitutional rights were violated. 
     The Sixth Amendment, together with the Fifth Amendment's Due 
     Process Clause, ``requires that each element of a crime'' be 
     either admitted by the defendant, or ``proved to the jury 
     beyond a reasonable doubt.'' Alleyne v. United States, 570 
     U.S. __, __ (2013) (slip op., at 3). Any fact that increases 
     the penalty to which a defendant is exposed constitutes an 
     element of a crime, Apprendi v. New Jersey, 530 U.S. 466, 
     483, n. 10, 490 (2000), and ``must be found by a jury, not a 
     judge,'' Cunningham v. California, 549 U.S. 270, 281 (2007).* 
     We have held that a substantively unreasonable penalty is 
     illegal and must be set aside. Gall v. United States, 552 
     U.S. 38, 51 (2007). It unavoidably follows that any fact 
     necessary to prevent a sentence from being substantively 
     unreasonable--thereby exposing the defendant to the longer 
     sentence--is an element that must be either admitted by the 
     defendant or found by the jury. It may not be found by a 
     judge.
       For years, however, we have refrained from saying so. In 
     Rita v. United States, we dismissed the possibility of Sixth 
     Amendment violations resulting from substantive 
     reasonableness review as hypothetical and not presented by 
     the facts of the case. We thus left for another day the 
     question whether the Sixth Amendment is violated when courts 
     impose sentences that, but for a judge-found fact, would be 
     reversed for substantive unreasonableness. 551 U.S., at 353; 
     see also id., at 366 (Stevens, J., joined in part by 
     Ginsburg, J., concurring) (``Such a hypothetical case should 
     be decided if and when it arises''). Nonetheless, the Courts 
     of Appeals have uniformly taken our continuing silence to 
     suggest that the Constitution does permit otherwise 
     unreasonable sentences supported by judicial factfinding, so 
     long as they are within the statutory range. See, e.g., 
     United States v. Benkahla, 530 F. 3d 300, 312 (CA4 2008); 
     United States v. Hernandez, 633 F. 3d 370, 374 (CA5 2011); 
     United States v. Ashqar, 582 F. 3d 819, 824-825 (CA7 2009); 
     United States v. Treadwell, 593 F. 3d 990, 1017-1018 (CA9 
     2010); United States v. Redcorn, 528 F. 3d 727, 745-746 (CA10 
     2008).
       This has gone on long enough. The present petition presents 
     the case the Court claimed to have been waiting for. And it 
     is a particularly appealing case, because not only did no 
     jury convict these defendants of the offense the sentencing 
     judge thought them guilty of, but a jury acquitted them of 
     that offense. Petitioners were convicted of distributing 
     drugs, but acquitted of conspiring to distribute drugs. The 
     sentencing judge found that petitioners had engaged in the 
     conspiracy of which the jury acquitted them. The Guidelines, 
     petitioners claim, recommend sentences of between 27 and 71 
     months for their distribution convictions. But in light of 
     the conspiracy finding, the court calculated much higher 
     Guidelines ranges, and sentenced Jones, Thurston, and Ball to 
     180, 194, and 225 months' imprisonment.
       On petitioners' appeal, the D.C. Circuit held that even if 
     their sentences would have been substantively unreasonable 
     but for judge-found facts, their Sixth Amendment rights were 
     not violated. 744 F. 3d 1362, 1369 (2014). We should grant 
     certiorari to put an end to the unbroken string of cases 
     disregarding the Sixth Amendment--or to eliminate the Sixth 
     Amendment difficulty by acknowledging that all sentences 
     below the statutory maximum are substantively reasonable.
  Ms. JACKSON LEE. I will say that 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.
  I really think this legislation has exposed some incredulous behavior 
because most people believe that you are sentenced on the reasonable 
doubt convictions as opposed to additional sidebar conversations that 
may come to the judge's attention in terms of other offenses.
  Today, we consider a simple, narrowly tailored bill that builds on 
our bipartisan effort to create a fair justice system. This 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 
jury of their peers, and consistent with the principles on which 
country was founded.

[[Page H3883]]

  Before I close, I join with my colleague from Tennessee's remarks and 
indicate the deepest sympathy to the family of the dean, Congressman 
Don Young. He is a voice--and I speak in the present. His presence was 
larger than life. He spoke to everyone. His booming voice is something 
that I am certainly going to find a great loss, as well as his love and 
passion for not only his family and his great State but also for this 
institution.
  I don't know if we will ever find an institutionalist such as Don, 
but we can certainly follow in his footsteps and his desire for order 
when he cited the words ``regular order.''
  We were blessed by having him here, and may he rest in peace.
  Mr. Speaker, I ask that my colleagues join me in supporting this 
bill, and I yield back the balance of my time.
  Mr. Speaker, I move to suspend the rules and pass H.R. 1621, the 
``Prohibiting Punishment of Acquitted Conduct Act of 2021, as amended.
  Mr. Speaker, I ask unanimous consent that all Members have 5 
legislative days to revise and extend their remarks and include 
extraneous material on H.R. 1621.
  Mr. Speaker, I yield myself such time as I may consume.


                           Opening Statement

  Mr. Speaker. I am proud to support of H.R. 1621, the ``Prohibiting 
Punishment of Acquitted Conduct Act,'' which offers a solution to a 
long-identified problem within our criminal justice system.
  This bill provides necessary reform to current federal sentencing 
practice that allows judges to sentence defendants based on conduct for 
which a jury found them not guilty.
  The Sixth Amendment to the Constitution provides that anyone accused 
of a crime shall enjoy the right to a speedy and public jury trial, 
while the Fifth Amendment provides that no person shall be deprived of 
life, liberty, or property, without due process of law.
  Together these provisions mean that the Government is bound to prove 
each and every element of an offense for which a defendant is charged 
beyond a reasonable doubt during a jury trial, or that a defendant must 
admit each element of an offense to support a plea of guilty.
  Notwithstanding this constitutional obligation, federal judges 
routinely nullify not guilty verdicts rendered by juries and sentence 
defendants to significantly higher penalties based on acquitted 
conduct.
  In its current form, 18 USC Sec. 3661 prohibits any limitation of the 
conduct a judge may consider when sentencing a defendant, even when a 
jury has determined that there was insufficient evidence to prove the 
defendant committed the charged offense.
  Additionally, under the concept of ``relevant conduct,'' the U.S. 
Sentencing Guidelines allow judges to consider a range of conduct, 
including dismissed charges, uncharged conduct, and acquitted conduct 
when imposing sentences.
  The fact-finding made by judges at sentencing is based on a lower 
evidentiary standard than at trial--that is by a preponderance of the 
law--which many scholars define as a 50% chance that a claim is true.
  The reform proposed in this bill ensures that judges punish 
defendants based on facts proven beyond a reasonable doubt--the higher 
evidentiary standard of proof required during jury trials, which some 
scholars attach a value of 90 to 95% surety.
  Justice Ginsburg moderate-liberal who became more liberal in later 
years, joined Justice Thomas and Justice Scalia, a staunch 
conservative, in his dissent in Jones v. United States, lamenting the 
failure of the Court to determine if the Sixth Amendment is violated 
when judges impose sentences based solely on judge-found facts.
  While the Sentencing Guidelines suggested prison sentences from 27 to 
71 months for the three defendants in the case, the trial judge imposed 
sentences of 180, 194, and 225 months, based on conduct the prosecution 
failed to prove.
  Justice Scalia's often-quoted dissent was issued more than seven 
years ago.
  Yet nothing has been done about this unjust, undemocratic practice, 
which diminishes the sanctity of the jury trial, the public check on 
the government's power, and the overall integrity of the criminal 
justice system.
  H.R. 1621 would restore fairness to jury trials by amending Section 
3661 to ban consideration of acquitted conduct at sentencing unless the 
conduct is considered for mitigation purposes.
  Though I wish we were doing more to advance substantive criminal 
justice reform, I support this bipartisan bill that addresses an acute 
need while restoring the basic propositions of due process and the 
right to trial by jury.
  I thank our colleague, Representative Steve Cohen, for his commitment 
to justice and for taking the lead on this significant, bipartisan bill 
alongside Representative Kelly Armstrong.
  A broad coalition of advocates support this measure, 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.
  It is my hope that the Senate will take up and pass the House version 
of this bill soon.
  I ask my colleagues to support this bill and to continue working 
together on additional measures to make our justice system more 
equitable and more transparent.
  Mr. CICILLINE. Mr. Speaker, I rise today in support of the 
Prohibiting Punishment of Acquitted Conduct Act--commonsense bipartisan 
and bicameral legislation to restore a key aspect of fairness to our 
criminal justice system.
  Under the U.S. criminal justice system, you are innocent until proven 
guilty. A principle that is foundational to our system of law and 
order.
  Coupled with this principle, is that if you are charged with a crime, 
you are entitled to a trial by a jury of your peers. If they find you 
innocent, your case is finished.
  This all makes sense--and aligns with our understanding of our 
justice system. But, in too many cases, tour courts are punishing 
people for crimes they've been found innocent of.
  Currently, even if one jury finds you innocent and acquits you of a 
crime, a different judge can still use that allegation as a basis of 
providing a harsher punishment for a crime you are convicted of.
  This means that the second judge can effectively unilaterally 
overturn a prior acquittal when considering a future sentence--
dismissing the presumption of innocent until proven guilty.
  This is absurd.
  I was a litigator and defense attorney for many years, and I 
understand exactly how unjust it is for someone found innocent to have 
this ticking timebomb looming overhead.
  This bill will end the practice of judges increasing sentences based 
on conduct for which a defendant has been acquitted by a jury--
restoring a foundation pillar of fairness in our criminal justice 
system.
  I want to thank Congressman Cohen and Congressman Armstrong for their 
leadership on this issue, and I urge my colleagues to support this 
commonsense bill.
  The SPEAKER pro tempore. The question is on the motion offered by the 
gentlewoman from Texas (Ms. Jackson Lee) that the House suspend the 
rules and pass the bill, H.R. 1621, as amended.
  The question was taken.
  The SPEAKER pro tempore. In the opinion of the Chair, two-thirds 
being in the affirmative, the ayes have it.
  Mr. CLYDE. Mr. Speaker, on that I demand the yeas and nays.
  The SPEAKER pro tempore. Pursuant to section 3(s) of House Resolution 
8, the yeas and nays are ordered.
  Pursuant to clause 8 of rule XX, further proceedings on this motion 
are postponed.

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