[House Report 117-279]
[From the U.S. Government Publishing Office]


117th Congress    }                                      {      Report
                        HOUSE OF REPRESENTATIVES
 2d Session       }                                      {     117-279

======================================================================



 
        PROHIBITING PUNISHMENT OF ACQUITTED CONDUCT ACT OF 2021

                                _______
                                

 March 28, 2022.--Committed to the Committee of the Whole House on the 
              State of the Union and ordered to be printed

                                _______
                                

            Mr. Nadler, from the Committee on the Judiciary,
                        submitted the following

                              R E P O R T

                        [To accompany H.R. 1621]

    The Committee on the Judiciary, to whom was referred the 
bill (H.R. 1621) to amend section 3661 of title 18, United 
States Code, to prohibit the consideration of acquitted conduct 
at sentencing, having considered the same, reports favorably 
thereon without amendment and recommends that the bill do pass.

                                CONTENTS

                                                                   Page
Purpose and Summary..............................................     1
Background and Need for the Legislation..........................     2
Hearings.........................................................     3
Committee Consideration..........................................     3
Committee Votes..................................................     3
Committee Oversight Findings.....................................     3
Committee Estimate of Budgetary Effects..........................     3
New Budget Authority and Congressional Budget Office Cost 
  Estimate.......................................................     3
Duplication of Federal Programs..................................     3
Performance Goals and Objectives.................................     4
Advisory on Earmarks.............................................     4
Section-by-Section Analysis......................................     4
Changes in Existing Law Made by the Bill, as Reported............     4

                          Purpose and Summary

    H.R. 1621, the ``Prohibiting Punishment of Acquitted 
Conduct Act of 2021,'' would prohibit judges from increasing 
sentences based on conduct for which a jury found a defendant 
not guilty.

                Background and Need for the Legislation

    The U.S. Supreme Court has held that ``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.'''\1\ The Court further held that ``[a]ny fact that 
increases the penalty to which a defendant is exposed 
constitutes an element of a crime . . . and `must be found by a 
jury, not a judge.'''\2\ Despite this guidance, under 18 U.S.C. 
Sec. 3661, Congress has barred any limitation on the conduct 
that sentencing courts may consider for the purpose of imposing 
punishment. And the ``Relevant Conduct'' provision of the 
United States Sentencing Guidelines\3\ allows federal courts to 
enhance a defendant's sentence by considering a range of 
factors, including the conduct underlying charges of which the 
defendant was acquitted.\4\ Consequently, federal judges are 
permitted to sentence defendants based on charges for which a 
jury found them not guilty, and the evidentiary standards at 
sentencing are lower compared to the guilt-innocence phase. The 
lower federal courts have ``almost uniformly approved of the 
use of acquitted or uncharged conduct at sentencing, so long as 
a judge finds by a preponderance of the evidence that the 
conduct occurred.''\5\
---------------------------------------------------------------------------
    \1\Jones v. United States, 574 U.S. 948 (2014) (Scalia, J., joined 
by Thomas, Ginsburg, JJ., dissenting from denial of certiorari and 
quoting Alleyne v. United States, 570 U.S. 99, 104 (2013)).
    \2\Jones v. United States, 574 U.S. at 948 (quoting Apprendi v. New 
Jersey, 530 U.S. 466, 483, n.10, 490 (2000) and Cunningham v. 
California, 549 U.S. 270, 281 (2007)).
    \3\U.S.S.G. Sec. 1B1.3
    \4\Michael A. Foster, Judicial Fact-Finding and Criminal 
Sentencing: Current Practice and Potential Change, Cong. Rsch. Serv. 
(Aug. 24, 2018) at 1, https://sgp.fas.org/crs/misc/LSB10191.pdf.
    \5\Id.
---------------------------------------------------------------------------
    Some judges and legal commentators have disagreed with the 
practice, largely on constitutional grounds.\6\ Criticism of 
the practice has reached the high court. While the Supreme 
Court held that the consideration of acquitted conduct by a 
preponderance standard at sentencing did not violate the double 
jeopardy clause in United States v. Watts, the Court has never 
addressed whether the Sixth Amendment right to trial by jury 
prohibits the practice.\7\ In Jones v. United States,\8\ 
Supreme Court justices Antonin Scalia, Clarence Thomas, and 
Ruth Bader Ginsburg strongly dissented from the denial of 
certiorari in a case seeking review of exceptionally high 
sentences that were imposed because a judge found the 
defendants were part of a drug distribution conspiracy despite 
the jury's acquittal on that count. Justice Scalia, writing for 
the dissent, stated that appellate courts have taken the 
Court's silence on the issue as a suggestion that these 
sentences are permitted so long as they are in the statutory 
range.\9\ Justice Scalia wrote, ``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.''\10\ Prior to their elevation to the Supreme Court, 
Justices Neil Gorsuch and Brett Kavanaugh expressed concerns 
about the reliance on acquitted conduct at sentencing.\11\
---------------------------------------------------------------------------
    \6\Id.
    \7\519 U.S. 148 (1997).
    \8\574 U.S. at 948.
    \9\Id. Justice Scalia stated that the Supreme Court ``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.''
    \10\Id. (emphasis in original).
    \11\See United States v. Bell, 808 F.3d 926, 927 (D.C. Cir. 2015) 
(Kavanaugh, J.); United States v. Sabillon-Umana, 772 F.3d 1328, 1331 
(2014) (Gorsuch, J.).
---------------------------------------------------------------------------
    The ``Prohibiting Punishment of Acquitted Conduct Act of 
2021'' would prohibit judges from increasing sentences based on 
conduct for which a jury found a defendant not guilty by 
amending 18 U.S.C. Sec. 3661 to preclude courts 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 or not responsible in a 
federal, state, or juvenile courts, or acts underlying a 
criminal charge or juvenile information dismissed upon a motion 
for acquittal.

                                Hearings

    The Committee did not hold any hearings related to H.R. 
1621.

                        Committee Consideration

    On November 17, 2021, the Committee met in open session and 
ordered the bill, H.R. 1621 favorably reported without an 
amendment, by a voice vote, a quorum being present.

                            Committee Votes

    No roll call votes occurred during the Committee's 
consideration of H.R. 1621.

                      Committee Oversight Findings

    In compliance with clause 3(c)(1) of House Rule XIII, the 
Committee advises that the findings and recommendations of the 
Committee, based on oversight activities under clause 2(b)(1) 
of House Rule X, are incorporated in the descriptive portions 
of this report.

                Committee Estimate of Budgetary Effects

    Pursuant to clause 3(d)(1) of House Rule XIII, the 
Committee adopts as its own the cost estimate prepared by the 
Director of the Congressional Budget Office pursuant to section 
402 of the Congressional Budget Act of 1974.

   New Budget Authority and Congressional Budget Office Cost Estimate

    Pursuant to clause 3(c)(2) of House Rule XIII and section 
308(a) of the Congressional Budget Act of 1974, and pursuant to 
clause (3)(c)(3) of House Rule XIII and section 402 of the 
Congressional Budget Act of 1974, the Committee has requested 
but not received from the Director of the Congressional Budget 
Office a budgetary analysis and a cost estimate of this bill.

                    Duplication of Federal Programs

    Pursuant to clause 3(c)(5) of House Rule XIII, no provision 
of H.R. 1621 establishes or reauthorizes a program of the 
federal government known to be duplicative of another federal 
program.

                    Performance Goals and Objectives

    The Committee states that pursuant to clause 3(c)(4) of 
House Rule XIII, H.R. 1621 would end the practice of judges 
increasing sentences based on conduct for which a defendant has 
been acquitted by a jury.

                          Advisory on Earmarks

    In accordance with clause 9 of House Rule XXI, H.R. 1621 
does not contain any congressional earmarks, limited tax 
benefits, or limited tariff benefits as defined in clause 9(d), 
9(e), or 9(f) of House Rule XXI.

                      Section-by-Section Analysis

    The following discussion describes the bill as reported by 
the Committee.
    Sec. 1. Short Title. Section 1 sets forth the short title 
of the bill, the ``Prohibiting Punishment of Acquitted Conduct 
Act of 2021.''
    Sec. 2. Acquitted Conduct at Sentencing. Section 2 amends 
18 U.S.C. Sec. 3661 to bar judges from considering at 
sentencing, except for purposes of mitigating a sentence, 
conduct for which a defendant was acquitted (found not guilty). 
The amendment applies only to judgments entered on or after the 
date of enactment.
    This section also defines the term ``acquitted conduct'' as 
an act for which a person was criminally charged and found not 
guilty after trial or adjudicated not responsible in a Federal, 
State, Tribal, or Juvenile court; any favorable disposition to 
the person in any prior charge, regardless of whether the 
disposition was pretrial, at trial, or post trial; or acts 
underlying a criminal charge or juvenile information dismissed 
upon a motion for acquittal.

         Changes in Existing Law Made by the Bill, as Reported

  In compliance with clause 3(e) of rule XIII of the Rules of 
the House of Representatives, changes in existing law made by 
the bill, as reported, are shown as follows (existing law 
proposed to be omitted is enclosed in black brackets, new 
matter is printed in italics, and existing law in which no 
change is proposed is shown in roman):

                      TITLE 18, UNITED STATES CODE




           *       *       *       *       *       *       *
PART II--CRIMINAL PROCEDURE

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CHAPTER 232--MISCELLANEOUS SENTENCING PROVISIONS

           *       *       *       *       *       *       *



Sec. 3661. Use of information for sentencing

  No limitation shall be placed on the information concerning 
the background, character, and conduct of a person convicted of 
an offense which a court of the United States may receive and 
consider for the purpose of imposing an appropriate sentence, 
except that a court of the United States shall not consider, 
except for purposes of mitigating a sentence, acquitted conduct 
under this section.

           *       *       *       *       *       *       *


Sec. 3673. Definitions for sentencing provisions

   [As] (a) As  used in chapters 227 and 229--
          (1) the term ``found guilty'' includes acceptance by 
        a court of a plea of guilty or nolo contendere;
          (2) the term ``commission of an offense'' includes 
        the attempted commission of an offense, the 
        consummation of an offense, and any immediate flight 
        after the commission of an offense; and
          (3) the term ``law enforcement officer'' means a 
        public servant authorized by law or by a government 
        agency to engage in or supervise the prevention, 
        detection, investigation, or prosecution of an offense.
  (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.

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