Dear Friend,

We are delighted to report that the U.S. Sentencing Commission voted to ban the use of acquitted conduct to calculate a guideline sentence! Judge Carlton Reeves, the Chair of the Commission, explained, “Not guilty means not guilty. By enshrining this basic fact within the federal sentencing guidelines, the Commission is taking an important step to protect the credibility of our courts and criminal justice system.”

We could not agree more—and we are not alone. Last year, several Supreme Court Justices urged the Commission to address the practice of using acquitted conduct and a bipartisan group in Congress introduced a bill limiting its use.

Acquitted conduct is not gone for good; it can still be used in two limited circumstances:

1. If the conduct underlying the charge for which the defendant was found not guilty was also present and underlying the instant charge, and
2. If the judge exercises their discretion to do so after calculating the guideline range.

Still, this is a huge victory, and one that FAMM has pursued for many years. We couldn’t have done it without our amazing families, and that includes you, friends!

Our work is not done yet, though, and we will need your help again. The Commission also voted to consider whether to make the change to acquitted conduct retroactive. If it does, people already sentenced using acquitted conduct would be able to ask the court to reduce that sentence to one not enhanced by acquitted conduct. We support this measure and hope this happens. The Commission has asked for public comment on whether to make the change retroactive. Public comments on retroactivity are due by June 21, 2024. You can register your opinion by visiting the following link and clicking on “Submission Portal”: https://www.ussc.gov/policymaking/public-comment.

In other news, the Commission did not vote to eliminate the use of juvenile criminal history in calculating a guideline sentence. We had encouraged the agency to end the counting of crimes committed by minors, so we are disappointed. But we will keep encouraging the Commission to act on this.

Yours,

Mary Price

General Counsel, FAMM

P.S. The proposed amendments were submitted to Congress on April 30, 2024, and will be added to the federal sentencing guidelines on November 1 unless Congress successfully modifies or rejects any of them. You can see all the amendments here: https://www.ussc.gov/guidelines/amendments/adopted-amendments-effective-november-1-2024

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