During impeachment storm, senators cross aisle to lessen mass incarceration
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A jury recently found Eric Beck not guilty of murder, but the judge sentenced him to prison for it anyway. The jury convicted Beck of firearms possession for which sentencing laws would have recommended he receive two to six years in prison. Nevertheless, the judge sentenced Beck to 20 to 33 years because he disagreed with the jury and believed—based on a lower legal standard than what our Constitution requires—that Beck was also guilty of murder.

All federal (and most state) judges currently have the ability to ignore a jury’s verdict and undermine the requirement that criminal convictions be imposed only after having been proven “beyond a reasonable doubt.” Instead, federal law currently allows judges to increase a person’s sentence if they determine that the government has proven its accusations under a mere “preponderance of evidence” standard. Although Beck’s sentence was ultimately overturned in a state supreme court, such “acquitted conduct sentencing” remains legal practically everywhere else.

The Bill of Rights sets out protections for the accused, including the right to trial by jury and due process of law. The Double Jeopardy Clause rejects retrying—and thus punishing—a defendant for a crime for which he has been acquitted. And, as the Supreme Court has explained, the Sixth Amendment’s “core concern” is to reserve critical facts for determination by the jury. Punishing an accused person based on acquitted conduct abrogates all of these constitutional protections as well as notions of fundamental fairness.

Jurists across the ideological spectrum have assailed the practice. Five years ago, the late Justice Antonin Scalia, joined by Justices Ruth Bader GinsburgRuth Bader GinsburgButtigieg defends court-packing proposal at Democratic debate Ocasio-Cortez is getting her own action figure Harris v. EEOC and the women's rights legacy of Ruth Bader Ginsburg MORE and Clarence ThomasClarence ThomasThe Hill's 12:30 Report: Hunter Biden speaks out amid Ukraine controversy Clarence Thomas's Supreme Court confirmation, 28 years later Overnight Health Care — Presented by Coalition Against Surprise Medical Billing — Judge blocks Trump 'public charge' rule | Appeals court skeptical of Trump arguments for Medicaid work requirements | CDC offers guidance for treating vaping-related cases MORE, wrote that sentencing based on acquitted conduct “has gone on long enough.” Former Justice John Paul Stevens rejected the practice and Justices Neil GorsuchNeil GorsuchSupreme Court agrees to hear challenge to consumer agency Difficult issues involving human sexuality require dialogue, not scorn, misinformation Supreme Court can prove its independence — or its partisan capture MORE and Brett KavanaughBrett Michael KavanaughOn The Money: Supreme Court takes up challenge to CFPB | Warren's surge brings scrutiny to wealth tax | Senators eye curbs on Trump emergency powers Supreme Court agrees to hear challenge to consumer agency First-generation American launches Senate campaign against Booker MORE each eschewed it as circuit court judges. Just last year, D.C. Circuit Court of Appeals Judge Patricia Millett wrote that the use of acquitted conduct at sentencing, “allowed the government a second bite at the incarceration apple,” and explained that “Incarceration without conviction is a constitutional anathema.”

A jury of one’s peers serves as a democratic bulwark against the imposition of arbitrary government punishment. Our Founders understood that criminal prosecution was one of the strongest tools a government could use against its people. They determined that their government must prove its case to the accused’s community through a jury. A rule that allows a judge to base a person’s sentence on unproven accusations a jury has actually rejected turns these constitutional protections on their head.

Jurors understand the stakes in the cases before them, sometimes sacrificing their lives for months to ensure justice is done. One juror published a moving letter to the judge after he learned the defendant in his trial was to be sentenced for conduct the jury had purposefully rejected. He wrote, “What does it say to our contribution as jurors when we see our verdicts…not given their proper weight? …Had [prosecutors] shown us hard evidence, [a guilty verdict] might have been the outcome, but that was not the case.”

Despite the many condemnations of acquitted conduct sentencing, it remains accepted practice. The Due Process Institute—a bipartisan nonprofit dedicated to restoring fairness in the criminal legal system—has been leading the fight to abolish this practice both in courts and on Capitol Hill. We have recently filed an amicus brief encouraging the Supreme Court to review the constitutionality of this practice. But we can’t afford to wait for the High Court to do the right thing.

Therefore, we proudly endorse bipartisan legislation—the Prohibiting Punishment of Acquitted Conduct Act of 2019 (S.2566)—introduced last week by Senate Minority Whip Dick DurbinRichard (Dick) Joseph DurbinDemocrats dig in ahead of Supreme Court ruling on 'Dreamers' Senate GOP braces for impeachment trial 'roller coaster' Trump judicial nominee delayed amid GOP pushback MORE (D-Ill.), Sens. Chuck GrassleyCharles (Chuck) Ernest GrassleyState cites 38 people for violations in Clinton email review Lawmakers from both sides of the aisle mourn Cummings GOP cautions Graham against hauling Biden before Senate MORE (R-Iowa), Patrick LeahyPatrick Joseph LeahyVermont high school girls' soccer team penalized for removing jerseys to reveal #EqualPay shirts Democrats dig in ahead of Supreme Court ruling on 'Dreamers' McConnell tees up government funding votes amid stalemate MORE (D-Vt.), Mike LeeMichael (Mike) Shumway LeeZuckerberg launches public defense of Facebook as attacks mount Overnight Defense — Presented by Boeing — Pence says Turkey agrees to ceasefire | Senators vow to move forward with Turkey sanctions | Mulvaney walks back comments tying Ukraine aid to 2016 probe On The Money: Senate fails to override Trump veto over border emergency | Trump resort to host G-7 next year | Senators to push Turkey sanctions despite ceasefire | McConnell tees up funding votes MORE (R-Utah), Cory BookerCory Anthony BookerWarren says she will unveil plan to finance 'Medicare for All' Gabbard hits back at 'queen of warmongers' Clinton The Hill's Campaign Report: Biden camp faces new challenges MORE (D-N.J.) and Thom TillisThomas (Thom) Roland TillisTillis says impeachment is 'a waste of resources' GOP requests update on criminal referrals prompted by 2018 Kavanaugh probe The Hill's Campaign Report: Warren, Sanders overtake Biden in third-quarter fundraising MORE (R-N.C.). This proposed law would make it clear that a judge cannot increase a person’s prison sentence based on acts for which a person was found not guilty. It ensures that a person who is punished with prison is only punished for those crimes that a prosecutor proved, not those they would have liked to have proven.

Justice is not a partisan issue and every American wants a fair and effective criminal justice system. That requires respect for due process, restoring the primacy of the citizen jury, and adhering to the core principles of our Constitution. We applaud Grassley and Durbin for leading the effort to reach across the aisle in a difficult political environment to affirm that Americans should not serve prison time for crimes they did not commit.

Shana-Tara O’Toole is the Founder and President of the Due Process Institute. The Due Process Institute is a bipartisan 501(c)(4) who educates, lobbies, and litigates on behalf of the principles of fundamental fairness and procedural due process rights in the criminal legal system. In conjunction with today’s legislation introduction, the Due Process Institute also announces the launch of its national education, advocacy, and litigation campaign #JuriesDecide.