Posted by Eugene Volokh:
Could O.J.'s Sentence for Robbery Take Into Account His Killings?
http://volokh.com/archives/archive_2007_09_16-2007_09_22.shtml#1190048872
The [1]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.
References
1. http://www.breitbart.com/article.php?id=D8RMOQ500&show_article=1
_______________________________________________
Volokh mailing list
[email protected]
http://lists.powerblogs.com/cgi-bin/mailman/listinfo/volokh
