Mr. Simpson’s Nine Years
posted by Paul Butler
My colleague Orin Kerr, in response to my earlier post about O.J. Simpson’s sentencing, asks if I agree with the perception that I attributed to “some blacks” that an exceptionally harsh sentence yesterday would have been an affront to the principle of the rule of law (because it actually would have been punishing Mr. Simpson for a different crime -one he was acquitted of, to the chagrin of many white people).
I think the judge’s nine year sentence is tough, but defensible. Nine years is prison is a hella long time, as most western industrialized nations understand a lot better than the U.S. does. The judge repeatedly stated that she was not punishing Mr. Simpson for any criminal act other than the one of which the jury convicted him. If the judge had sentenced Mr. Simpson to a significantly longer term, and not provided those assurances, the concerns my first post identified would have been justified.
The judge’s reasonably fair decision in this case strengthens the argument against strict sentencing guidelines, and in support of giving judges the discretion, and latitude, to actually decide individual cases. Here’s to letting judges be judges.
December 6, 2008 at 8:31 am
Posted in: Criminal Law
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Responses (13)
Kevin Jon Heller - December 6, 2008 at 12:35 pm
I have a difficult time believing anyone else would have received 9 years for the same crime. And as for the assurances, would you really have expected the judge to say “by the way, Mr. Simpson, your sentence reflects the murder of Nicole Brown, as well.” Legal or not, that would have been a PR disaster.
Patrick S. O'Donnell - December 6, 2008 at 12:45 pm
Kevin,
You may be right, but if I’m not mistaken, criminal law is particularly severe in Nevada, as are many of the judges. Perhaps someone with more intimate knowledge of such things could enlighten us.
Tim - December 6, 2008 at 3:46 pm
Nevada has “truth in sentencing” meaning he was goind to have to serve 100% of his minimum sentence.
The judge gave him a minimum of nine years, so he will be serving nine years….I believe the minimum possible minimum sentence was 6 years by guidelines. So it was a bit stiff, but of course judges have some descretion…he got extra for their being a gun, and being violent….and I find it hard to believe, seeing as how the judge was acutely aware of it, that his past didn’t seep in somehow.
Orin Kerr - December 6, 2008 at 4:13 pm
Thanks, Paul. Interesting. (I haven’t followed the facts of the case or the relevant state law enough to really know.)
A.W. - December 6, 2008 at 4:54 pm
Paul,
I have to say your racialization of this is disappointing. You could make just as good a case that the real fault lines are between women and men on this topic as along racial lines. Or we can ignore all that and talk about the issues without racializing or genderizing the issues.
The man beat his wife, she divorced him and he eventually murdered her in a jealous rage. Only an inordinate awareness of color makes his acquittal anything but a tragedy. Feel free to argue that it is a necessary evil, but it is nonetheless an evil.
As for the argument that this demonstrates how good discretion is, um, hardly. strict guidelines might have told the judge that she was being too harsh or too soft. We will surely see people saying that she was too harsh, but without guidelines, what does this reflect but our own gut feelings about how much a person should be sentenced for this crime?
Chris - December 7, 2008 at 4:18 pm
Regarding the suggestion that “punishing Mr. Simpson for a different crime–one he was acquitted of” would be “an affront to the principle of the rule of law,” see, e.g., here: “[L]ong-standing precedents of the Supreme Court and [the D.C. Circuit] establish that a sentencing judge may consider uncharged or even acquitted conduct in calculating an appropriate sentence, so long as that conduct has been proved by a preponderance of the evidence and the sentence does not exceed the statutory maximum for the crime of conviction. See United States v. Watts, 519 U.S. 148, 156-57 (1997); United States v. Brown, 516 F.3d 1047, 1050-51 (D.C. Cir. 2008); United States v. Dorcely, 454 F.3d 366, 371 (D.C. Cir. 2006); United States v. Boney, 977 F.2d 624, 636 (D.C. Cir. 1992); see also Williams v. New York, 337 U.S. 241, 247 (1949).”
Tim - December 8, 2008 at 3:21 am
Well Chris,
I don’t believe his possible Murder of his wife was proven “by a preponderance of the evidence” in this case, and probably officially a decade ago…whatever you’re opinion may be.
The sentence was about what I thought…My prediction was here http://joshuetree.blogspot.com/2008/12/oj-is-heading-to-prison-this-time.html – I was off by a bit.
Tim - December 8, 2008 at 3:22 am
Well Chris,
I don’t believe his possible Murder of his wife was proven “by a preponderance of the evidence” in this case, and probably officially a decade ago…whatever you’re opinion may be.
The sentence was about what I thought…My prediction was here http://joshuetree.blogspot.com/2008/12/oj-is-heading-to-prison-this-time.html – I was off by a bit.
Chris - December 8, 2008 at 10:40 pm
FWIW, the Goldman v. Simpson civil jury found liability under a preponderance-of-the-evidence standard.
A.W. - December 9, 2008 at 8:41 am
Chris,
No, see, that was just for wrongful death. so maybe OJ just negligently dropped a whole drawer full of knives on them… that’s the ticket!
Seriously, that is why I say we shouldn’t call him an alleged murderer. the jury found him responsible for her death; she was murdered; therefore he is a murderer.
Tim - December 9, 2008 at 3:54 pm
Chris,
I think A.W. is right…that’s not criminal conduct. I don’t think it will usually be appropriate to take civil liability into consideration when contemplating criminal charges.
Chris - December 9, 2008 at 4:30 pm
Lots of things taken into consideration as sentencing factors aren’t criminal, though. E.g., lack of acceptance of responsibility–it’s not an additional crime, but it generally increases the sentence.
A.W. - December 9, 2008 at 9:21 pm
Tim,
Um, you missed my sarcasm.
Nicole and Ron didn’t die by accident. they were murdered.
So if OJ is responsible, then he is a murderer.
Maybe not in the eyes of the criminal courts, but in every ratonal person’s eyes, yes.
not guilty doesn’t mean innocent.
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