September 16, 2007
O.J. and acquitted conduct sentencing
As detailed in this CNN report, "Las Vegas police arrested O.J. Simpson on Sunday amid an investigation into an alleged armed robbery at a hotel in Las Vegas." I cannot help but wonder, assuming Simpson is convicted on some charges related to this investigation, if perhaps the most infamous of all acquittals could ultimately become the basis for a sentencing enhancement.
September 16, 2007 at 05:02 PM | Permalink
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Doug, were you the Solicitor General to the Queen of Hearts in a previous life?
(For those who haven't read Alice's Adventures in Wonderland, the Queen of Hearts was famous for saying, among other things, sentence first, trial after.)
Posted by: Kent Scheidegger | Sep 16, 2007 6:53:34 PM
The answer you would receive from the Nevada Supreme Court: "So long as the trial judge issues a sentence within the statutory limits, and the judge does not say something absolutely outrageous on the record, we're not the least bit interested in reviewing the sentence." The courts here could care less as to whether a defendant receives the low end or the high end, whether the sentences are consecutive or concurrent, or whether or not the guy who was sentenced 5 minutes prior (and that is the average length of a sentencing hearing in Las Vegas) received a far different sentence for the same conduct. If he's convicted of one or more offense, I predict that he will receive somewhere between 6 months and life and the Nevada Supreme Court will not give one moment of care as to whether or not his prior acquittal is considered or not.
Posted by: jonell | Sep 16, 2007 10:25:18 PM
One can only hope that the answer to Doug B.'s question is "yes".
Posted by: William Jockusch | Sep 17, 2007 5:38:24 AM
In California you could. The idea is the standards of proof are different. It takes "beyond a reasonable doubt" for a new crime - items listed in a prior record only have to be "preponderanceof evidence" - a much lower standard.
Posted by: Jeff | Sep 17, 2007 11:46:38 AM
The first issue is whether the subject committed a crime and/or criminal offense, which call for a deliberative judgment. The second issue is whether the subject is a criminal offender, which is an intuitive judgment. You cannot get to the second issue until the first has been established. A person who is a criminal offender has a risk of committing another crime. The extent of that risk has to be determined, which involves making an assessment of that person’s background. Certainly acquitted conduct is relevant, just as many other factors. These are two different issues that have to be taken in order; sentencing is a sequential process.
Finally, no one including judges can determine whether someone will have an unacceptable risk of committing another criminal offense at some point years ahead. Risk changes; it may increase or decrease. Risk is an actuarial determination. So the traditional approach to sentencing is unrealistic. Risk determinations have to be made periodically. That’s what your insurance company does.
I really don’t understand why this is so difficult to understand.
Posted by: Tom McGee | Sep 17, 2007 12:22:26 PM
Why wouldn't it be? Until the SCOTUS started muddying up the waters with imaginary rights at sentencing (that have never existed before) there was never any question that uncharged, acquitted conduct, and whatever other bad deed lagnaippe the prosecution had would come in. That's the price of conviction.
Posted by: dweedle | Sep 17, 2007 5:11:52 PM