In what may come as a surprise to many, lawmakers across the political spectrum actually agree on at least one thing: the practice of sentencing federal defendants based on acquitted conduct has gone on long enough. Last week, a bi-partisan panel of the U.S. Sentencing Commission voted to issue a proposed amendment that would prohibit judges from considering a defendant’s acquitted conduct when calculating their guidelines range and ultimate sentence.

Over two decades have passed since the Supreme Court’s decision in United States v. Watts, 519 U.S. 148 (1997), where the Court permitted judges to consider acquitted charges against defendants when calculating their sentencing guidelines range, so long as the judge concluded that the acquitted conduct was proven by a preponderance of the evidence. Unsurprisingly, many found this holding irreconcilable with the Constitution’s guarantee that guilt be determined by a jury of one’s peers. Since Watts, a significant number of federal defendants have received enhanced sentences based on a court’s consideration of acquitted conduct. In one striking example that is currently the subject of a petition for certiorari to the Supreme Court, United States v. McClinton, 23 F.4th 732 (7th Cir. 2022), the Seventh Circuit affirmed the District Court’s use of acquitted conduct when sentencing a defendant for a robbery conviction. While the sentencing guidelines would have recommended a sentence of approximately five to six years’ incarceration for the robbery, the judge sentenced him to 20 years after taking into account a murder charge for which the defendant had be previously acquitted after a trial by jury. The Supreme Court is expected to make a decision on his petition for certiorari shortly and may revisit the holding in Watts. Notably, 17 retired federal judges – appointed by both Democrats and Republicans – filed a brief supporting the petition, and many scholars expect the Court to consider the issue.

Regardless of whether the Court grants certiorari, the U.S. Sentencing Commission has now taken matters into its own hands and proposed an amendment to the Sentencing Guidelines that would prohibit federal judges from considering acquitted conduct to calculate a defendant’s sentencing guidelines range unless the conduct was otherwise admitted by the defendant during a guilty plea colloquy. The Sentencing Commission’s definition of acquitted conduct encompasses both conduct of which the trier of fact has found a defendant not guilty and conduct that underlies a successful motion of acquittal pursuant to Rule 29 of the Federal Rules of Criminal Procedure. Public comments on the Commission’s proposal are due by March 14.