[House Report 117-279]
[From the U.S. Government Publishing Office]
117th Congress } { Report
HOUSE OF REPRESENTATIVES
2d Session } { 117-279
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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\
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\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.
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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\
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\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.).
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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
* * * * * * *
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.
* * * * * * *
[all]