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

CNN reports:

O.J. Simpson faces the prospect of spending the rest of his life in prison after he and co-defendant Clarence "C.J." Stewart were found guilty on 12 charges, including armed robbery and kidnapping....

The case involved a Las Vegas, Nevada, hotel room confrontation over sports memorabilia. Simpson said the items had been stolen from him....

Prosecutors charged that Simpson led a group of men who used threats, guns and force to take photographs, footballs and other items from memorabilia dealers Bruce Fromong and Al Beardsley in September 2007....

So when the judge is deciding on Simpson's sentence, may he take into account Simpson's killing Nicole Simpson and Ron Goldman, and give Simpson a longer sentence than he'd give a first offender charged with the same crimes?

Yes (as I mentioned last year), at least as a matter of federal constitutional law. In sentencing, a judge may take into account any past crimes on Simpson's part, using a preponderance of the evidence standard, even if an earlier jury had found that Simpson's guilt of those crimes hadn't been proven beyond a reasonable doubt.

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 the judge in this case would indeed act this way; but the federal Constitution would let him act this way if he so chose.

Now there might be some Nevada rules that prohibit this; I did a quick search and couldn't find any, but if any of you know Nevada law on the subject and can enlighten me, I'd be much obliged. But as a matter of federal constitutional law, a judge may (for instance) sentence Simpson to (say) life in prison for the robbery and kidnapping -- based partly on Simpson's past misconduct -- even if the judge would have sentenced a first offender only to (say) 10 years in prison.

	[Eugene Volokh, October 4, 2008 at 3:59pm] Trackbacks Could O.J.'s Sentence for Robbery Take Into Account His Killings? CNN reports: O.J. Simpson faces the prospect of spending the rest of his life in prison after he and co-defendant Clarence "C.J." Stewart were found guilty on 12 charges, including armed robbery and kidnapping.... The case involved a Las Vegas, Nevada, hotel room confrontation over sports memorabilia. Simpson said the items had been stolen from him.... Prosecutors charged that Simpson led a group of men who used threats, guns and force to take photographs, footballs and other items from memorabilia dealers Bruce Fromong and Al Beardsley in September 2007.... So when the judge is deciding on Simpson's sentence, may he take into account Simpson's killing Nicole Simpson and Ron Goldman, and give Simpson a longer sentence than he'd give a first offender charged with the same crimes? Yes (as I mentioned last year), at least as a matter of federal constitutional law. In sentencing, a judge may take into account any past crimes on Simpson's part, using a preponderance of the evidence standard, even if an earlier jury had found that Simpson's guilt of those crimes hadn't been proven beyond a reasonable doubt. 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 the judge in this case would indeed act this way; but the federal Constitution would let him act this way if he so chose. Now there might be some Nevada rules that prohibit this; I did a quick search and couldn't find any, but if any of you know Nevada law on the subject and can enlighten me, I'd be much obliged. But as a matter of federal constitutional law, a judge may (for instance) sentence Simpson to (say) life in prison for the robbery and kidnapping -- based partly on Simpson's past misconduct -- even if the judge would have sentenced a first offender only to (say) 10 years in prison.