Under our Constitution, the jury trial is supposed to be the cornerstone of criminal adjudication. The independence of citizen jurors has always been understood to be an indispensable structural check on executive, legislative, and even judicial power. And that independence has always entailed a special solicitude for jury acquittals, which are intended to have unassailable finality. Yet prosecutors and judges routinely do end‐​runs around this intended finality — and thus, around the jury trial itself — through the pernicious practice of “acquitted conduct sentencing.”

“Acquitted conduct sentencing” refers to the scenario in which a judge sentences a defendant not just upon the charge for which they were convicted, but also based upon alleged conduct underlying charges for which they were acquitted. For example, in Jones v. United States, the defendants were charged with both (1) distributing small amounts of crack cocaine, and (2) a conspiracy to distribute large amounts of crack cocaine. The jury convicted on the distribution charge, but acquitted on the conspiracy charge. Common sense and basic constitutional principles would seem to dictate that the defendants be sentenced only on the basis of their distribution.

But bizarrely, the judge in that case effectively disagreed with the jury’s verdict, concluded that the defendants did engage in the charged conspiracy, and sentenced them far more harshly than would otherwise have been warranted. While the Guidelines sentencing range for the distribution charge would have “only” been 27–71 months (still a wildly excessive punishment, but beside the point here), the three defendants in Jones were ultimately sentenced to 180, 194, and 225 months — in essence, punishing them about four times more harshly solely because of alleged conduct for which they were acquitted.

Acquitted conduct sentencing is not only unjust, but flagrantly unconstitutional. Although the Supreme Court has held that this practice does not specifically violate the Double Jeopardy Clause (a conclusion which itself is questionable), it has never addressed whether the practice violates either the Due Process Clauses of the Fifth and the Fourteenth Amendment, or the Sixth Amendment right to a jury trial. And as Cato has argued in several amicus briefs on the subject, acquitted conduct sentencing is inherently at odds with the understanding of the jury trial in the Anglo‐​American legal tradition, and especially contrary to the special sanctity and unassailable finality of jury acquittals. Permitting sentencing based on acquitted conduct not only denies criminal defendants their Sixth Amendment right to a jury trial, but also denies the community their proper role in overseeing the administration of criminal justice.

Moreover, it’s especially important to address acquitted conduct sentencing now, given how it reinforces and exacerbates the larger problem of coercive plea bargaining. Today, jury trials have been all but replaced by guilty pleas as the baseline for criminal adjudication, and there is ample reason to doubt whether the bulk of these pleas are truly voluntary. And as Judge Patricia Millett of the D.C. Circuit recently explained, “factoring acquitted conduct into sentencing decisions imposes almost insurmountable pressure on defendants to forgo their constitutional right to a trial by jury. Defendants will face all the risks of conviction, with no practical upside to acquittal unless they run the board and are absolved of all charges.” Precluding sentences based on acquitted conduct would therefore be a small but vital safeguard against the wholesale erosion of the jury trial itself.

Fortunately, both the Supreme Court and Congress will soon have opportunities to clarify that acquitted conduct sentencing is unjust and unconstitutional. First, on the judicial side, the cert petition currently pending before the Court in Asaro v. United States explicitly raises the question of “[w]hether the Fifth and Sixth Amendments prohibit a federal court from basing a criminal defendant’s sentence on conduct underlying a charge for which the defendant was acquitted by a jury.” The Cato Institute, Due Process Institute, National Association of Federal Defenders, and FAMM all filed briefs in support of this petition, and there is good reason to think that many of the Justices will be interested. Both Justice Thomas and Justice Ginsburg joined the dissent from denial of certiorari in the Jones case from 2014, in which Justice Scalia explicitly called upon the Court to clarify that acquitted conduct sentencing violates the Sixth Amendment, and that the Court’s history of evading that question “has gone on long enough.” Justice Kavanaugh, back when he was a judge on the D.C. Circuit, also repeatedly criticized the practice.

But key members of Congress are also moving to eliminate acquitted conduct sentencing. Just today, a bipartisan group of Senators, including Dick Durbin (D-IL), Chuck Grassley (R-IA), Patrick Leahy (D-VT), Thom Tillis (R-NC), Cory Booker (D-NJ), and Mike Lee (R-UT), introduced the “Prohibiting Punishment of Acquitted Conduct Act of 2019.” According to the Senate’s press release, the bill would “preclude a court of the United States from considering, except for purposes of mitigating a sentence, acquitted conduct at sentencing,” and it would define “acquitted conduct” as “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.” The bill has also been endorsed by a diverse, cross‐​ideological array of dozens of different public interest groups, including the ACLU, American Bar Association, American Conservative Union, Due Process Institute, Innocence Project, and Koch Industries (as a general matter, the Cato Institute does not endorse proposed legislation).

Whether through judicial or legislative action, or both, the unconstitutional scourge of acquitted conduct sentencing must be abolished — and it looks like that time may be coming soon.