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March 18, 2014

As a matter of law, policy and practice, what should be the "offense" a sentencer considers?

The question in the title of this post is arguably the most fundamental and important question (and one which is conceptually and practically quite difficult) for any and all sentencing systems.  And yet, this question seems rarely examined or even discussed except when there is controversy over issues like the use of acquitted or uncharged conduct in a guideline sentencing system.  Because I will be exploring this question with my sentencing students in coming classes, I am quite eager to have readers of this blog share their perspectives.

Some important consensus realities help explain why the question is conceptually and practically quite difficult: (1) nearly all sentencing systems and observers agree that the offense(s) of conviction must be a necessary and critical part of the "offense" to be considered at sentencing, but (2) nearly all sentencing systems and observers agree that at least some non-conviction, offense-related factors (such as motive and leadership role) should also be considered sentencing.  In other words, there is a consensus view that the "offense(s) of conviction" are a central but non-exclusive part of what I would call the "offense for sentencing."  That consensus, in turn, presents critical follow-up questions concerning just how a sentencing system (A) can/should define and process the "offense(s) of conviction" and (B) can/should allow, structure and/or require of any variety of non-conviction, offense-related factors.  Some of the most challenging and controversial issues of modern sentencing can often hinge on matters related to these follow-up questions/categories A and B.  

For example, under category A, a sentencing system must consider cases in which a defendant is convicted of multiple offenses and decide if a sentencer must or should group multiple convictions for sentencing consideration or should instead consider each offense distinctly and then combine in some way the sentence determined separately for each offense.  Also under category A are hard questions about offenses that have as a fundamental element the requirement of a serious prior conviction — like failure to register as a sex offender or felon in possession of a firearm.   A sentencing system has to consider if a sentencer must or should view the nature and circumstances of the predicate prior offense as important in consider the new offense of conviction.

Hard issues raised under category B are even more common and often much more controversial.  For example, if/when a defendant has been charged but not convicted of offense-related conduct either because of a jury acquittal or a plea deal, can/should/must a sentencer consider (or be barred from considering) facts and factors related to charged but unconvicted conduct?  In addition, just how much weight can/should/must a sentencer give to offense-related factors that are rarely part of a formal conviction (factors like motive and leadership role and victim impact), but that are often thought central to understanding how truly serious any specific offense really is. 

March 18, 2014 at 12:09 PM | Permalink


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There is a parallel jurisprudence which gets ignored here and everywhere. Sufficiency of the evidence. Does the prosecution have evidence submitted and adm8itted before the court which proves each element of the offense beyond a reasonable doubt? If a "factor" is a "sentencing enhancement factor" the it becomes an element of the offense. Assault in the first degree should not get a higher sentence or so called enhancement because the defendant is a Gypsie or an African American. If the so called sentencing enhancement factor is not part of the statutory offense then it cannot be used to enhance or add time to a sentence. If it is part of the statutory offense then it must survive other scrutiny. So, if the state wants assault in the first degree to be enhanced because Joe Bob used a weapon of mass destruction and not just a colt 45, then that element should be in the statutory definition of the crime. Then, there must be proof beyond a reasonable doubt of that element of the offense. The case of Jackson v. Virginia is a starter. Anyone recall that case?

Posted by: Liberty1st | Mar 18, 2014 2:29:02 PM

Justice Hugo Black provides the best opinion on this topic. You may think it is tangential to the topic posed by Doug here but think about it. This is the case of Timothy Leary, yeah the LSD Timothy Leary. Here is the snippet:

Tim Leary case:

*55 Mr. Justice BLACK, concurring in the result.
I concur in the Court's outright reversal of the petitioner's conviction on Count 3 of the indictment for the reasons set out in Part I of the Court's opinion.

I also concur in reversal of the petitioner's conviction on Count 2 of the indictment, based on 21 U.S.C. s 176a. That section makes it a crime to import marihuana into the United States or to receive, conceal, or transport it, knowing it to have been imported contrary to law, and then goes on to provide that the mere possession of marihuana shall be ‘deemed sufficient evidence to authorize conviction unless the defendant explains his possession to the satisfaction of the jury.’The trial court in this case charged the jury that proof that petitioner merely had possession of marihuana was sufficient to authorize a finding that he knew it had been imported or brought into the United States contrary to law. It is clear beyond doubt that the fact of possession alone is not enough to support an inference that the possessor knew it had been imported. Congress has no more constitutional power to tell a jury it can convict upon any such forced and baseless inference than it has power to tell juries they can convict a defendant of a crime without any evidence at all from which an inference of guilt could be drawn. See Thompson v. Louisville, 362 U.S. 199, 80 S.Ct. 624, 4 L.Ed.2d 654 (1960). Under our system of separation of powers, Congress is just as incompetent to instruct the judge and jury in an American court what evidence is enough for conviction as the courts are to tell the Congress what policies it must adopt in writing criminal laws. The congressional presumption, therefore, violates the constitutional right of a defendant to be tried by jury in a court set up in accordance with the commands of the Constitution. It clearly deprives a defendant of his right not to be convicted and punished for a crime without*56 due process of law, that is, in a federal case, a trial before an independent judge, after an indictment by grand jury, with representation by counsel, an opportunity to summon witnesses in his behalf, and an opportunity to confront the witnesses against him. This right to a full-fledged trial in a court of law is guaranteed to every defendant by Article III of the Constitution, in the Sixth Amendment, and by the Fifth and Fourteenth Amendments' promises that no person shall be deprived of his life, liberty, or property without due process of law-that is A trial according to the law of the land, both constitutional and statutory.

It is for these reasons, and not because I think the law is “irrational' or ‘arbitrary,’ and hence unconstitutional,' ante, at 1548, that I would invalidate this presumption. I am firmly and profoundly opposed to construing ‘due process' as authorizing this Court to invalidate statutes on any such nebulous grounds. My quite different reasons for holding that the presumption does deny due process of law, that is the benefit of the ‘law of the land,’ have been fully set out in many opinions, including, for illustration,**1559 my concurring opinion in Tot v. United States, 319 U.S. 463, 473, 63 S.Ct. 1241, 87 L.Ed. 1519 (1943), and my dissenting opinion in United States v. Gainey, 380 U.S. 63, 74, 85 S.Ct. 754, 761, 13 L.Ed.2d 658 (1965).

U.S.Tex. 1969.
Leary v. U.S.
395 U.S. 6, 89 S.Ct. 1532, 23 L.Ed.2d 57, 23 A.F.T.R.2d 69-2006, 69-2 USTC P 15,900, 1969-2 C.B. 216


Maybe this is some food for thought.

Posted by: Liberty1st | Mar 18, 2014 2:41:30 PM

Here is the snippet or summary by the Court in the Jackson v. Virginia case.

Petitioner was convicted of first-degree murder after a bench trial in a Virginia court, and his motion and petition in the state courts to set aside the conviction on the ground that there was insufficient evidence of premeditation, a necessary element of first-degree murder, were denied. He then brought a habeas corpus proceeding in Federal District Court, which, applying the “no evidence” criterion of Thompson v. Louisville,Thompson v. Louisville,Thompson v. Louisville, 362 U.S. 199, 80 S.Ct. 624, 4 L.Ed.2d 654, 362 U.S. 199, 80 S.Ct. 624, 4 L.Ed.2d 654, 362 U.S. 199, 80 S.Ct. 624, 4 L.Ed.2d 654, 362 U.S. 199, 80 S.Ct. 624, 4 L.Ed.2d 654, found the record devoid of evidence of premeditation and granted the writ. Applying the same criterion, the Court of Appeals reversed, holding that there was some evidence that petitioner had intended to kill the victim.Thompson v. Louisville,


1. A federal habeas corpus court must consider not whether there was any evidence to support a state-court conviction, but whether there was sufficient evidence to justify a rational trier of fact to find guilt beyond a reasonable doubt. In re Winship,In re Winship,In re Winship,In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368. 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368. 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368. 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368. Pp. 2786-2792.

(a) In re Winship presupposes as an essential of the due process guaranteed by the Fourteenth Amendment that no person shall be made to suffer the onus of a criminal conviction except upon sufficient proof-defined as evidence necessary to convince a trier of fact beyond a reasonable doubt of the existence of every element of the offense. Pp. 2786-2788.

(b) After In re Winship, the critical inquiry on review of the sufficiency of the evidence to support a criminal conviction must be not simply to determine whether the jury was properly instructed on reasonable doubt, but to determine whether the record evidence could reasonably support a finding of guilt beyond a reasonable doubt. The relevant question is whether after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. The Thompson “no evidence” rule is simply inadequate to protect against misapplications of the constitutional standard of reasonable doubt. Pp. 2788-2790.

(c) In a challenge to a state conviction brought under 28 U.S.C. § 225428 U.S.C. § 225428 U.S.C. § 225428 U.S.C. § 2254 , which requires a federal court to entertain a state prisoner's claim that he is being held in “custody in violation of the Constitution *308 or laws or treaties of the United States,” the applicant is entitled to habeas corpus relief if it is found that upon the evidence adduced at the trial no rational trier of fact could have found proof of guilt beyond a reasonable doubt. Pp. 2790-2792.

2. A review of the record in this case in the light most favorable to the prosecution shows that a rational factfinder could have found petitioner guilty beyond a reasonable doubt of first-degree murder under Virginia law. Pp. 2792-2793.

4th Cir., 580 F.2d 1048,580 F.2d 1048,580 F.2d 1048,580 F.2d 1048, affirmed.
Carolyn J. Colville, Richmond, Va., for petitioner, pro hac vice, by special leave of Court.

Marshall Coleman, Richmond, Va., for respondents.

*309 Mr. Justice STEWART delivered the opinion of the Court.

Posted by: Liberty1st | Mar 18, 2014 3:33:29 PM

Well, I believe the predicate and subject of a sentence (train of thought) must correspond; i.e., "be analogous or equivalent in character, form, or function." With a compound predicate, the subject of that train of thought must also be compound, or there may be multiple trains of thought, each of which have corresponding predicates and subjects.

The problem here is antisocial behavior, which is complex and unfolds, sometimes over an extended period of time. Crimes are unlawful manifestations of antisocial behavior. Decision-makers access the problem by means of a jeopardy argument. First it is established that the person in question committed a crime (priming premise). Before that the problem is not fully knowable. Then at the time of sentencing a judge finishes framing the jeopardy argument. That crime was the core part of a criminal offense (Base Premise). A criminal offense is a modifier-head conceptual combination. The conclusion to a jeopardy argument follows; that person is a criminal offender who has a substantial risk of committing another crime. In other words the problem is captured in the form of a jeopardy argument, which serves as the agenda for multiple trains of thought that culminate in a correction plan.

So finally, how should the responses to this argument be put together in a correction plan? Correction plans are modular. The core module in a correction plan restricts an offenders freedom to be self-governing; i.e., it is the Deprivation Module in an individualized correction plan. It is based on the theory of an offenders autonomy. I have tried to capture all of this in a graphic. Doug I am sending this graphic to you by email because it does not work when I try to post it on your blog. Please use it in anyway you wish.

Posted by: Tom McGee | Mar 18, 2014 6:14:41 PM

My point in the three comments above, is that conviction and sentence is the same thing and that there needs to be proof beyond a reasonable doubt of each element of the offense. It may be easy to prove that the defendant is of Irish descent and that the Micks are predisposed to drunk driving but it is not up to constitutional due process mutard. Lawyers need to take note of the jurisprudence of Jackson v. Virginia and the Leahy cases. If there are any law students out there in Doug's class then think about this issue.

Posted by: Liberty1st | Mar 18, 2014 9:12:36 PM

So is it your view, Liberty1st, that before a judge considers a defendant's motive (good or bad) and/or a defendant's role in the offenses (good or bad) at sentencing, these facts/factors have to be prove BRD?

If/when a defendant is convicted of a federal fraud offense --- like, to use on example, Jamie Olis, a former Dynegy Inc. tax executive --- then sentencing judge cannot and should not consider Olis's claims that he didn’t personally benefit from the fraud scheme and had acted at the behest of his superiors unless/until he were to prove up these facts BRD? Or is your claim that these facts related to the offense are irrelevant and that Olis can/should be sentenced exactly the same as if he did financially benefit from the fraud and devised it himself?

As I tried to explain above, the notion that a defendant should only be sentenced for the offense as defined by what he was convicted of is both simplistic and implies that we ought to have fixed sentences determined by legislatures if/when every crime of conviction necessarily includes all relevant sentencing factors.

Posted by: Doug B | Mar 20, 2014 2:47:12 PM

My point of view comes from the beyond a reasonable doubt stable of horses and lawyers. An offense has to be defined. A person sentenced to an offense has to be given notice of the offense and the range of punishment. The trier, judge or jury, should not be able to go off the reservation and sentence someone, i.e. add to a sentence, because of "other conduct or affiliation". Like the situation where hearsay and horseshit evidence comes in that JoeBob was a drunk, or a druggie, or a Communist and the judge gives him more time. I would rather have defined sentences for exactly worded and defined crimes. Moral turpitude don't do it dude.

Posted by: Liberty1stl | Mar 21, 2014 10:14:39 PM

If I did not personally benefit from a fraud scheme then an affirmative defense might be interposed to that set of facts and indeed make personal benefit an element of the offense. If I did so at the behest of my employer and am at risk of being fired then perhaps that might be either a positive element for the prosecution to prove, i.e. I did it voluntarily for money. Or it might be an affirmative defense.

Posted by: Liberty1stl | Mar 22, 2014 8:06:21 PM

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