Eugene Volokh, of the eponymous Volokh Conspiracy - an excellent, slightly-right-of-center law blog - points out an interesting aspect of last week’s conviction in the O.J. Simpson kidnapping/robbery trial. Now that O.J. has been convicted, of course he will have to be sentenced, and the range of possible sentences runs from 15 years in jail to life. The actual sentence he receives, and his eligibility for parole, depend upon the judge’s discretion moderated by various sentencing factors the judge is allowed or required to take into account.

The question here is what aspects of Simpson’s past may be held as relevant in determining the sentence for his current conviction. Technically, Simpson is a first-time offender - he has never been convicted on any criminal charges. He is also a double murderer, however, as determined by court of law in the civil trial that followed his acquittal on criminal charges in the same case. So, may the court take his prior violent acts into account in sentencing for his recent crime - itself involving weapons and threats of violence - or must it treat him as having a clean slate on the grounds that he was not legally convicted on criminal charges?

Off the cuff, I would have guessed that a judge would not be allowed to increase a sentence in a criminal conviction on the basis of prior acts that themselves had not resulted in a criminal conviction. In this case, of course, OJ was held liable for the killings in a court trial, but it was a civil trial and as such he still technically does not have a criminal record. I would have thought that, too, would be out of bounds for sentencing purposes.

As Volokh explains, that is wrong on both counts. Apparently, the judge can make an independent determination whether certain past acts did or did not occur, and the established legal standard for that determination is “preponderance of the evidence” - less strict than the “reasonable doubt” standard of criminal trials. This puts the judge in the position of “trier of fact” for sentencing purposes, whereas only the jury is supposed to determine factual truth in the actual trial itself.

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.

Thus, the judge in this case could decide that OJ really is a murderer (after reviewing the record from his previous trials), and sentence him in the current case as if this were a second conviction following a murder conviction. OJ could get life (I don’t know about the parole option) for a stupid push-in stickup (in which one of the victims testified for him), on the basis of the killings he was previously acquitted of and for which many people thought he had escaped justice. Since there was never a realistic probability he would have gotten the death penalty for the murder case, he may get in this case pretty much the same sentence he would have received for the murders the first time (albeit after enjoying 13 years of exhausting efforts to “find the real killer”) - and if he hadn’t committed the murders, he would almost certainly be facing just an ordinary first-offense sentence for the robbery. In a very real sense, he is (possibly) going to be sentenced for the murders, as a result of his conviction for the robbery.

I am somewhat uncomfortable with this, but I have also just had a long conversation with a (non-criminal) lawyer about it, who pointed out that evidence of past behavior, both good and bad, is always taken into account in discretionary sentencing. In fact, as she noted, part of the widespread complaints about New York State’s draconian sentencing standards for drug crimes (commonly known as the “Rockefeller Drug Laws”, after the former governor) have to do with the lack of discretion judges have to fit the sentence to the defendant’s record. It is helpful to be able to give minimal sentences for good records, but that also implies that convicts with bad records should get harsher sentences. And those sentencing hearings do not and cannot operate on a criminal-trial level of evidence; “good” convicts should not have to prove their good behavior “beyond a reasonable doubt”, but that also means bad actors can be held liable for their own past behavior on evidence that also does not meet the reasonable doubt standard.

OJ is certainly among the worst of bad actors*, and his behavior is not merely evident but has been certified so by a jury operating at the same legal standard of evidence as has been required for sentencing hearings. From this perspective, it is not just appropriate but in some way necessary that his status as a murderer be taken into account in sentencing him for his crimes as a robber.** But at the same time, it’s obvious, if he gets a stiff sentence, that he will essentially be doing time for his first crime, with his second crime merely a convenient reason to lay it on him. And that seems disingenuous, somehow.

More and more our legal system slips into being a cynical game of power-plays and manipulations. Rarely, it seems, is a case resolved by a simple and direct reference to the actual facts, with reasonable and considered punishment in consequence. There is no way to stand up in court and simply say “This is what happened, and this is what’s right.” I’m glad to see OJ get what he deserves for the crime he escaped conviction on, but in some ways I’d rather see him get what he deserves on the basis of clear and honest due process, not some coincidental and offhanded manipulation of circumstances arising in a completely different context.

* I’m not referring to his movie career, though it would still be true.

** Personally, I think he should just get life without parole for being a dickhead. I mean, really, for a guy at the absolute top of the world, how many ways has he discovered to completely fuck up his life? And after being allowed to skate, the first time, for a hand-to-hand double murder!? Wouldn’t you make it a point to avoid comitting any more violent crimes after getting a Get Out of Jail Free card for the Big M? In particular, wouldn’t you avoid, say, rounding up a posse of criminal accomplices, gathering guns, and staging an armed break-in of the hotel room of someone you know personally, while that person is present, without wearing a mask, in order to collect some football trading cards? I’m just sayin’ . . .