Prohibiting Punishment of Acquitted Conduct Act of 2021

Floor Speech

Date: March 28, 2022
Location: Washington, DC


Mr. COHEN. Mr. Speaker, first, I want to take a point of personal privilege. This is the first day that I have walked into the House without Don Young being in it.

Don Young was an outstanding Congressman and a good human being. He was my friend. Every day I walked in those doors and he sat on the aisle, I would say hello, and we would talk. This is the first day he hasn't been there to say hello.

I will join with other Members to memorialize him in the services tomorrow here in the Capitol and also at his church in Virginia on Wednesday. Mr. Young was the dean of the House, just a good human being, and he had a wonderful wife.

On this bill, I want to thank Mr. Armstrong for working with me on it. He was a strong proponent of the bill, and it is truly bipartisan and bicameral. It has already passed the Senate in some form, I believe.

It has been mentioned that Justice Scalia was a great proponent of this, as was Justice Ginsburg and Justice Kavanaugh.

Mr. Bentz and Ms. Jackson Lee have made all the arguments. I have a few pages of speeches here, but there is no reason to read them. A long time ago, I was told if you make the sale, sit down. The sale has been made, I believe.

Mr. Speaker, I urge everybody to vote ``aye.''

I rise in strong support of H.R. 1621, the Prohibiting Punishment of Acquitted Conduct Act. This bill is a bipartisan, bicameral effort to prevent judges from punishing defendants for conduct they have not been found to be guilty of. I'd like to begin by thanking my co-lead on this bill, Congressman Kelly Armstrong, for all his hard work on this issue.

The U.S. Constitution's Fifth and Sixth Amendments guarantee the right to due process and the right to a jury trial for those accused of a crime--these are two foundational principles meant to foster justice and fairness in the American criminal legal system. These rights ensure that we are presumed to be innocent unless and until the government proves a defendant's guilt to a Jury.

Our system requires the government to prove an individual's guilt to a jury beyond a reasonable doubt; however, under current federal law, judges may impose sentencing enhancements for conduct that they find to have been committed based on a less demanding standard--preponderance of the evidence.

The result of this discrepancy in the law is that even if a defendant has been found by a jury of their peers to not be guilty of a crime, a judge may still use and consider that conduct for the purposes of sentencing them. This means that people are spending time in jail for conduct that the government failed to prove they had committed, and a jury has acquitted them of.

This is entirely antithetical to the foundational principles of our criminal justice system and Constitution--it not only undermines due process, but it undercuts the important role juries play in our criminal system by allowing judges to sentence individuals for conduct regardless of the decision of the jury.

The Prohibiting Punishment of Acquitted Conduct Act would correct this inexplicable discrepancy by prohibiting the consideration of such acquitted conduct in sentencing by federal judges, unless being considered for the purpose of mitigating a sentence. This would ensure that no one spends time in jail for conduct prosecutors were not able to prove at trial.

It does so by amending Section 3661 of Title 18 to expressly state that, except for purposes of mitigating a sentence, a court of the United States shall not consider acquitted conduct when sentencing a defendant.

Ending the consideration of acquitted conduct is and should be a bipartisan effort--two of the fiercest champions of this policy position include the late Justices Ginsburg and Scalia.

Allowing judges to continue to sentence defendants based on conduct they have been acquitted of demeans and diminishes due process and is a blatant attack on the Constitutional rights of Americans. We must preserve and protect these rights by passing the Prohibiting Punishment of Acquitted Conduct Act.

No one should be put behind bars for something the government was unable to prove they did to a jury of their peers beyond a reasonable doubt.

I urge all of my colleagues to join me in supporting this bicameral, bipartisan bill to end this un-American practice.


Mr. COHEN. Will the gentleman yield?


Mr. COHEN. Mr. Speaker, I want to say how much I enjoyed working with Mr. Armstrong on the Judiciary Committee.

When I came back for the new Congress and he wasn't on the committee, that was a loss. But it has been good to work with him on this bill, and he has worked on this in the past. I appreciate it.

Mr. Speaker, I would like to incorporate by reference everything that Mr. Armstrong said into my previous lack of remarks. It can be done.