The Volokh Conspiracy - Could O.J.'s Sentence for Robbery Take Into Account His Killings?

The AP reports:

O.J. Simpson was arrested Sunday and faces multiple felony charges in an alleged armed robbery of collectors involving the former football great's sports memorabilia, authorities said....

The charges against Simpson will include robbery with a deadly weapon, conspiracy to commit robbery and burglary with a firearm, all felonies, Dillon said....

Simpson, 60, has said he and other people with him were retrieving items that belonged to him. Simpson has said there were no guns involved and that he went to the room at the casino only to get stolen mementos that included his Hall of Fame certificate and a picture of the running back with J. Edgar Hoover....

I'm not an expert on Nevada state sentencing rules. But I can say that, if Simpson is convicted, and the judge is making a discretionary sentencing decision about Simpson's sentence, the federal Constitution would (1) let the judge take into account any past crimes on Simpson's part, (2) using a preponderance of the evidence standard, (3) even if Simpson had been acquitted of those crimes. This means that a judge could increase the penalty all the way up to the statutory maximum for the crimes of which Simpson is convicted, far beyond what the norm would be for a typical armed robbery, burglary with a firearm, or what have you.

The theory behind modern American sentencing, after all, is that while guilt is about what the defendant did in this case, sentencing may (and should) in part turn on the defendant's general character. That's why first offenders are often treated leniently, but people with long criminal history records are punished more harshly.

Moreover, proof beyond a reasonable doubt has never been required at sentencing. Historically, judges could make decisions based on facts that hadn't been proven in any formal way; certainly facts shown by a preponderance of the evidence suffice. For this very reason, judges could consider alleged past criminal conduct of which the defendant had been acquitted: The acquittal simply shows that the conduct couldn't be proven beyond a reasonable doubt, and doesn't preclude proof by a preponderance of the evidence.

The Supreme Court has held that in presumptive sentencing guidelines schemes, all facts relevant to enhancement (except those which can be proven through a record of criminal convictions, and civil judgments likely wouldn't suffice) need to be found by a criminal jury. But the Court specifically held that judges could find such facts whenever they are making discretionary decisions, rather than decisions under presumptive guidelines schemes.

Simpson has been found guilty by a civil jury of killing his ex-wife and Ron Goldman. (If I'm not mistaken, the jury's award of punitive damages involved a finding of guilt by clear and convincing evidence, though I don't think this is necessary to my analysis.) It's possible -- I'm not sure -- that a judge could simply rely on this past finding; but a judge could certainly enter such a finding himself based on his own review of the evidence.

And given this finding about Simpson's past conduct and therefore his moral character, the judge would be legally allowed to impose a higher sentence than he would on a typical robber, burglar, or what have you. I'm not sure whether a judge would indeed act this way; but the federal Constitution would let him act this way if he so chose.

These are my tentative thoughts; please let me know whether I'm mistaken, though I think I'm right on the constitutional question. Please also let me know what Nevada state law rules might bear on the subject, if you're knowledgeable about Nevada law.

	[Eugene Volokh, September 17, 2007 at 1:07pm] Trackbacks Could O.J.'s Sentence for Robbery Take Into Account His Killings? The AP reports: O.J. Simpson was arrested Sunday and faces multiple felony charges in an alleged armed robbery of collectors involving the former football great's sports memorabilia, authorities said.... The charges against Simpson will include robbery with a deadly weapon, conspiracy to commit robbery and burglary with a firearm, all felonies, Dillon said.... Simpson, 60, has said he and other people with him were retrieving items that belonged to him. Simpson has said there were no guns involved and that he went to the room at the casino only to get stolen mementos that included his Hall of Fame certificate and a picture of the running back with J. Edgar Hoover.... I'm not an expert on Nevada state sentencing rules. But I can say that, if Simpson is convicted, and the judge is making a discretionary sentencing decision about Simpson's sentence, the federal Constitution would (1) let the judge take into account any past crimes on Simpson's part, (2) using a preponderance of the evidence standard, (3) even if Simpson had been acquitted of those crimes. This means that a judge could increase the penalty all the way up to the statutory maximum for the crimes of which Simpson is convicted, far beyond what the norm would be for a typical armed robbery, burglary with a firearm, or what have you. The theory behind modern American sentencing, after all, is that while guilt is about what the defendant did in this case, sentencing may (and should) in part turn on the defendant's general character. That's why first offenders are often treated leniently, but people with long criminal history records are punished more harshly. Moreover, proof beyond a reasonable doubt has never been required at sentencing. Historically, judges could make decisions based on facts that hadn't been proven in any formal way; certainly facts shown by a preponderance of the evidence suffice. For this very reason, judges could consider alleged past criminal conduct of which the defendant had been acquitted: The acquittal simply shows that the conduct couldn't be proven beyond a reasonable doubt, and doesn't preclude proof by a preponderance of the evidence. The Supreme Court has held that in presumptive sentencing guidelines schemes, all facts relevant to enhancement (except those which can be proven through a record of criminal convictions, and civil judgments likely wouldn't suffice) need to be found by a criminal jury. But the Court specifically held that judges could find such facts whenever they are making discretionary decisions, rather than decisions under presumptive guidelines schemes. Simpson has been found guilty by a civil jury of killing his ex-wife and Ron Goldman. (If I'm not mistaken, the jury's award of punitive damages involved a finding of guilt by clear and convincing evidence, though I don't think this is necessary to my analysis.) It's possible -- I'm not sure -- that a judge could simply rely on this past finding; but a judge could certainly enter such a finding himself based on his own review of the evidence. And given this finding about Simpson's past conduct and therefore his moral character, the judge would be legally allowed to impose a higher sentence than he would on a typical robber, burglar, or what have you. I'm not sure whether a judge would indeed act this way; but the federal Constitution would let him act this way if he so chose. These are my tentative thoughts; please let me know whether I'm mistaken, though I think I'm right on the constitutional question. Please also let me know what Nevada state law rules might bear on the subject, if you're knowledgeable about Nevada law.