Well, as you know, O.J. is at it again. He was arrested Sunday and faces multiple felony charges in an alleged armed robbery of collectors involving the former football great’s sports memorabilia.
Professor Volokh asks (and answers) an interesting question: If O.J. is convicted, can the sentencing judge take into account his past "crime" — the one for which he was acquitted? Volokh’s answer, which I find pursuasive, is "yes":
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.