Juries and judges need to make their decisions on a host of factors, some of which have to do with facts known about the defendant’s character as well as predictions about how likely they may be to reoffend. Still, the question of acquitted conduct sentencing is not quite as straightforward as that. Cohen’s argument, then, is clear: if we acquit someone of a charge, they should be fully acquitted, meaning those charges should not have any bearing on the sentence handed down to the defendant. But when sentences are expanded - even, in some cases, tripled - fines are raised, or obligatory service is extended, due to the charges the defendant has been acquitted of, it certainly seems as though the acquittal was meaningless. The reasoning is fairly straight-forward: if someone is charged with a crime but later acquitted, that acquittal seems to say that they cannot legally be punished for that particular charge. In his remarks, Congressman Cohen, along with the co-author of his bill, Kelly Armstrong (Congressional Representative for North Dakota at large), presented arguments to Congress for making Acquitted Conduct Sentencing an illegal practice. Osby ended up receiving an 84-month (7-year) prison sentence. The district court trying him, however, estimated a range of 87-108 months due to the five other charges of which he was acquitted. He was acquitted of all but two of the charges, which should have resulted in a prison sentence of between 24-30 months. For example, in 2019 Erick Osby of Virginia was charged with seven counts of criminal activity related to the possession of illegal narcotics and firearms.
Perhaps surprisingly, such a practice is not only legal, but relatively common. Acquitted Conduct Sentencing is the practice of a judge increasing the penalty for a crime based on facts about the defendant’s past - specifically, facts about crimes the defendant was charged with, but later acquitted of. The topic of the address was the legality of a practice called Acquitted Conduct Sentencing. On March 28th, 2022, the House of Congress was addressed by Congressman Steve Cohen (TN-09), Chairman of the Judiciary Subcommittee on the Constitution, Civil Rights, and Civil Liberties.
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