News Release

Nation’s Criminal Defense Bar Lauds Newly Introduced “Prohibiting Punishment of Acquitted Conduct Act of 2019”

Washington, DC (Sept. 26, 2019) – The National Association of Criminal Defense Lawyers (NACDL) supports and urges others to support the “Prohibiting Punishment of Acquitted Conduct Act of 2019,” co-sponsored by Senators Durbin (D-IL), Grassley (R-IA), Leahy (D-VT), Tillis (R-NC), Booker (D-NJ), and Lee (R-UT), and introduced today in the U.S. Senate. The bill would amend the U.S. code (18 U.S.C. § 3661) to stop the unjust practice of increasing sentences based on conduct for which a defendant has been acquitted by a jury.

“Reliance upon conduct for which an accused person has been tried and acquitted is fundamentally unjust and incompatible with basic constitutional principles,” said NACDL President Nina J. Ginsberg. “It is time to stop it.”

Currently, federal law allows judges to disregard a jury’s not guilty verdict by sentencing a defendant for the very conduct he or she was acquitted of by the jury. “This bill, if enacted, would not only stop this practice, it would also be a small, but important, step in addressing the trial penalty, a matter of preeminent concern for NACDL,” said NACDL Executive Director Norman L. Reimer.

The trial penalty refers to the substantial difference between the sentence offered prior to trial versus the sentence a defendant receives after trial. The trial penalty is pervasive, and contributes to the possibility of innocent people pleading guilty, because they fear the long and harsh sentence they would receive if convicted at trial, even if the chance of conviction is remote.

In fact, this bill adopts NACDL’s first recommendation—that evidence from acquitted conduct be excluded from sentencing determinations—from the Association’s groundbreaking 2018 report, The Trial Penalty: The Sixth Amendment Right to Trial on the Verge of Extinction and How to Save It.

Nina Ginsberg further noted that, “allowing the practice of using acquitted conduct in sentencing to continue only serves to heighten the trial penalty and threaten citizens’ Fifth and Sixth Amendment guarantees of due process and the right to trial by jury. Like so many other flaws in the criminal justice system, this practice inevitably has a disproportionate impact on minorities and the poor.”

NACDL and numerous other organizations sent a letter today to the Senate Judiciary Committee supporting the legislation. Click here to read the letter.

To read NACDL’s 2018 report, The Trial Penalty: The Sixth Amendment Right to Trial on the Verge of Extinction and How to Save It, and relevant information, visit

Continue reading below

Featured Products


Madeline Sklar, Public Affairs & Communications Assistant, 202-465-7647 or

The National Association of Criminal Defense Lawyers is the preeminent organization advancing the mission of the criminal defense bar to ensure justice and due process for persons accused of crime or wrongdoing. A professional bar association founded in 1958, NACDL's many thousands of direct members in 28 countries – and 90 state, provincial and local affiliate organizations totaling up to 40,000 attorneys – include private criminal defense lawyers, public defenders, military defense counsel, law professors and judges committed to preserving fairness and promoting a rational and humane criminal justice system.