# Acquitted conduct sentencing **URL:** \ **Category:** Great Debates\ **Created:** [March 12, 2013, 5:39pm UTC](https://boards.straightdope.com/t/acquitted-conduct-sentencing/652731 "2013-03-12T17:39:34Z")\ **Posts on this page:** 17\ **Page:** 4
**Author:** ![Hamlet](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/hamlet/32/2818_2.png) [@Hamlet](https://boards.straightdope.com/u/Hamlet)\ **Post date:** [March 15, 2013, 5:47pm UTC](https://boards.straightdope.com/t/acquitted-conduct-sentencing/652731/61 "2013-03-15T17:47:52Z")
> [@Boyo\_Jim](#): > > Not to the same degree of proof that a conviction would require. Yep. Again, sentencing is much more about doing justice than the legal formalism of the trial. ---
**Author:** ![Human\_Action](https://avatars.discourse-cdn.com/v4/letter/h/ac91a4/32.png) [@Human\_Action](https://boards.straightdope.com/u/Human_Action)\ **Post date:** [March 15, 2013, 5:49pm UTC](https://boards.straightdope.com/t/acquitted-conduct-sentencing/652731/62 "2013-03-15T17:49:50Z")
> [@Boyo\_Jim](#): > > The judge can look at many things, as I’ve noted, but not IMO at a crime that the defendant has been acquitted of or not even charged with. > > Of course, I understand that the judge CAN look at those too under current law, but IMO it shouldn’t be calculated into the sentencing. Do I understand you to mean that only conduct that is not, in itself, criminal should be factoring into sentencing? ---
**Author:** ![Hamlet](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/hamlet/32/2818_2.png) [@Hamlet](https://boards.straightdope.com/u/Hamlet)\ **Post date:** [March 15, 2013, 5:57pm UTC](https://boards.straightdope.com/t/acquitted-conduct-sentencing/652731/63 "2013-03-15T17:57:17Z")
> [@Boyo\_Jim](#): > > The judge can look at many things, as I’ve noted, but not IMO at a crime that the defendant has been acquitted of or not even charged with. Not even charged with? So actual reality can’t be considered unless there was a conviction obtained? Prior bad acts that were uncharged for whatever reason can’t be used in sentencing? That makes the formalism of the criminal trial much more important than doing justice, which I think is the actual goal of the system. > [@Boyo Jim](#): > > Of course, I understand that the judge CAN look at those too under current law, but IMO it shouldn’t be calculated into the sentencing. And I think the judge should be able to consider a great deal more than just the specific acts that led to the elements of the offense of which the person was convicted. I think my position would be much more likely to lead to a just outcome than yours. ---
**Author:** ![Boyo\_Jim](https://avatars.discourse-cdn.com/v4/letter/b/87869e/32.png) [@Boyo\_Jim](https://boards.straightdope.com/u/Boyo_Jim)\ **Post date:** [March 15, 2013, 6:02pm UTC](https://boards.straightdope.com/t/acquitted-conduct-sentencing/652731/64 "2013-03-15T18:02:55Z")
> [@Human\_Action](#): > > Do I understand you to mean that only conduct that is not, in itself, criminal should be factoring into sentencing? What did I already say? Victim impact can be considered. Remorse, or the lack of it, can be considered. There are probably other things too that are not coming immediately to mind. But not an alleged crime, and particularly not one that the defendant has been found to be not guilty. ---
**Author:** ![Human\_Action](https://avatars.discourse-cdn.com/v4/letter/h/ac91a4/32.png) [@Human\_Action](https://boards.straightdope.com/u/Human_Action)\ **Post date:** [March 15, 2013, 6:13pm UTC](https://boards.straightdope.com/t/acquitted-conduct-sentencing/652731/65 "2013-03-15T18:13:18Z")
> [@Boyo\_Jim](#): > > What did I already say? Victim impact can be considered. Remorse, or the lack of it, can be considered. There are probably other things too that are not coming immediately to mind. But not an alleged crime, and particularly not one that the defendant has been found to be not guilty. So, yes, then? Sorry if I’m thick, just trying to stay on the same page. Here’s the Federal Sentencing Guidelines list of grounds for departure from the guideline-recommended sentence: - Substantial assistance to authorities - Death - Physical injury - Extreme psychological injury - Abduction or unlawful restraint - Property damage or loss - Weapons and dangerous instrumentalities - Disruption of governmental function - Extreme conduct - Criminal purpose - Victim’s conduct - Lesser harms (defendant commits a crime in order to avoid a perceived greater harm) - Coercion and duress - Diminished capacity - Public welfare (if national security, public health, or safety was significantly endangered) - Voluntary disclosure of offense - Semiautomatic firearms capable of accepting large capacity magazines - Violent street gangs - Post-sentencing rehabilitative efforts - Aberrant behavior - Dismissed and uncharged conduct - Specific offender characteristics as grounds for downward departure in child crimes and sexual offenses - Discharged terms of imprisonment - Commission of offense while wearing or displaying unauthorized or counterfeit insignia or uniform ---
**Author:** ![robert\_columbia](https://avatars.discourse-cdn.com/v4/letter/r/e79b87/32.png) [@robert\_columbia](https://boards.straightdope.com/u/robert_columbia)\ **Post date:** [March 15, 2013, 6:23pm UTC](https://boards.straightdope.com/t/acquitted-conduct-sentencing/652731/66 "2013-03-15T18:23:02Z")
> [@Hamlet](#): > > Yes, but that’s the only thing it would allow, unless you’re advocating full trials into everything the judges considers, including employment, family situation, prior non-convicted conduct (like diversion courts for domestic abusers or any uncharged conduct), likelihood of harm of the conduct, the remorsefullness of the defendant, the impact on the victims, the amount of damage done, the defendant’s conduct during the trial, the defendant’s reputation in the community, the likelihood of re-offense, the mental state of the defendant, the status of the victim, rehabilitation potential, deterrence effect, the protection of the public, any suppressed evidence, prior treatment for drug or alcohol abuse, or any of the myriad of things a judge considers. > > The criminal justice system has long recognized that sentencing requires a much more flexible approach than the legalistic nature of a criminal trial. Once a conviction is obtained, the judge is given a much wider latitude in the factors he/she considers in determining the proper punishment… One piece of advice that I’ve run across is that if you are approaching a sentencing hearing you should make sure that a copy of your high school diploma or equivalency is in the presentence report or else the prison administrators will force you into GED classes. There was at least one “horror story” about a guy with an advanced education who was forced to take hours and hours of GED prep classes because the presentence report didn’t include his education and the prison wouldn’t let him go back and amend it, sorry buddy gotta take the classes. ---
**Author:** ![Human\_Action](https://avatars.discourse-cdn.com/v4/letter/h/ac91a4/32.png) [@Human\_Action](https://boards.straightdope.com/u/Human_Action)\ **Post date:** [March 15, 2013, 6:23pm UTC](https://boards.straightdope.com/t/acquitted-conduct-sentencing/652731/67 "2013-03-15T18:23:11Z")
Let me clarify. By: Do I understand you to mean that only conduct that is not, in itself, criminal should be factoring into sentencing? I mean, with regard to conduct of the defendent, only conduct that is not criminal should be factored in, on the grounds that criminal conduct must be accompanied by a conviction before it is applicable? I did not mean that _only_ the defendent’s conduct should be applicable, and not the identifty of the victim or anything like that. ---
**Author:** ![Telemark](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/telemark/32/372_2.png) [@Telemark](https://boards.straightdope.com/u/Telemark)\ **Post date:** [March 15, 2013, 6:28pm UTC](https://boards.straightdope.com/t/acquitted-conduct-sentencing/652731/68 "2013-03-15T18:28:19Z")
> [@Human\_Action](#): > > I did not mean that _only_ the defendent’s conduct should be applicable, and not the identifty of the victim or anything like that. Do you think that things not proven in a court that lead to a lower sentence (such as good deeds, connection to the community, past service, remorse) should be taken into account by the judge? What should be the legal hurdle for allowing those? ---
**Author:** ![Boyo\_Jim](https://avatars.discourse-cdn.com/v4/letter/b/87869e/32.png) [@Boyo\_Jim](https://boards.straightdope.com/u/Boyo_Jim)\ **Post date:** [March 15, 2013, 6:29pm UTC](https://boards.straightdope.com/t/acquitted-conduct-sentencing/652731/69 "2013-03-15T18:29:39Z")
I’m sorry, if you can’t understand what I’ve said, I see no point in continuing the discussion. Since when is “remorse”, which happens after the crime, an element of the crime? ---
**Author:** ![Human\_Action](https://avatars.discourse-cdn.com/v4/letter/h/ac91a4/32.png) [@Human\_Action](https://boards.straightdope.com/u/Human_Action)\ **Post date:** [March 15, 2013, 6:56pm UTC](https://boards.straightdope.com/t/acquitted-conduct-sentencing/652731/70 "2013-03-15T18:56:49Z")
> [@Telemark](#): > > Do you think that things not proven in a court that lead to a lower sentence (such as good deeds, connection to the community, past service, remorse) should be taken into account by the judge? Absolutely. Justice is best served by examing the aforementioned “totality of the circumstances”. > [@Telemark](#): > > What should be the legal hurdle for allowing those? The same as that for factors that increase the sentence. ---
**Author:** ![Hamlet](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/hamlet/32/2818_2.png) [@Hamlet](https://boards.straightdope.com/u/Hamlet)\ **Post date:** [March 15, 2013, 7:11pm UTC](https://boards.straightdope.com/t/acquitted-conduct-sentencing/652731/71 "2013-03-15T19:11:19Z")
> [@Boyo\_Jim](#): > > I’m sorry, if you can’t understand what I’ve said, I see no point in continuing the discussion. Trying to probe exactly how far your idea that one cannot use prior conduct at sentencing unless it resulted in a conviction isn’t on par with “not understanding”. Just trying to get a better idea of how your sentencings would work and how they would be any more just than what we currently have in place. ---
**Author:** ![Little\_Nemo](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/little_nemo/32/3120_2.png) [@Little\_Nemo](https://boards.straightdope.com/u/Little_Nemo)\ **Post date:** [March 15, 2013, 8:24pm UTC](https://boards.straightdope.com/t/acquitted-conduct-sentencing/652731/72 "2013-03-15T20:24:14Z")
> [@Human\_Action](#): > > I now ask: given that you both seem to accept the idea of a harsher sentence based on conduct that was not charged. How does that substantially differ from conduct that was acquitted? In either case, it’s an enhancement based on conduct for which a conviction was not secured. You seem to hold to the principle that everyone is guilty but that sometimes we can’t prove it. There was a trial. A jury looked over the evidence and found the defendant not guilty. So at that point he is _not guilty_. And no judge should have the power to treat him like he’s guilty. ---
**Author:** ![Hamlet](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/hamlet/32/2818_2.png) [@Hamlet](https://boards.straightdope.com/u/Hamlet)\ **Post date:** [March 15, 2013, 9:04pm UTC](https://boards.straightdope.com/t/acquitted-conduct-sentencing/652731/73 "2013-03-15T21:04:40Z")
> [@Little\_Nemo](#): > > You seem to hold to the principle that everyone is guilty but that sometimes we can’t prove it. > > There was a trial. A jury looked over the evidence and found the defendant not guilty. So at that point he is _not guilty_. And, again, “not proven guilty of this one charge beyond a reasonable doubt at trial” does not equal “innocent”. The judge is, and should be, given the power to consider all of the defendant’s actions (that whole “totality of the circumstances thing”) and not just the specific acts that he took that were the basis for the elements of the charge. This works both ways. We want judges to be able to consider the defendant’s other actions at sentencing when they work in the judge’s favor. The thief who stole the bread to give to the starving children should not pay the same price as the thief who stole the bread to sell for a profit. Judges should have the power to look beyond the specificity of the exact conduct that led to the convicition of a crime, to attempt to do justice in the sentence. Forcing the judge to deny reality or pretend that he didn’t consider the evidence of the totality of the defendant’s actions doesn’t make the sentence more just, it makes it less. ---
**Author:** ![Human\_Action](https://avatars.discourse-cdn.com/v4/letter/h/ac91a4/32.png) [@Human\_Action](https://boards.straightdope.com/u/Human_Action)\ **Post date:** [March 15, 2013, 9:26pm UTC](https://boards.straightdope.com/t/acquitted-conduct-sentencing/652731/74 "2013-03-15T21:26:20Z")
> [@Little\_Nemo](#): > > You seem to hold to the principle that everyone is guilty but that sometimes we can’t prove it. > > There was a trial. A jury looked over the evidence and found the defendant not guilty. So at that point he is _not guilty_. And no judge should have the power to treat him like he’s guilty. So you reject uncharged conduct sentencing as well? That’s what I was asking; you’d said that this case didn’t fall under uncharged or dismissed conduct, but not whether they had merit where acquitted conduct did not. Further, the defendant _is_ guilty in these cases, including the one from the OP. That individual was guilty of making false statements to police. His sentence for that crime fell within the statutory limits of the crime he was convicted of, in accordance with [Apprendi v. New Jersey.](http://en.wikipedia.org/wiki/Apprendi_v._New_Jersey) A judge must be able to consider all relevant factors when deciding a sentence for justice to be done. Removing that bastion of human reason results in absurdity and injustice, as our experience with “zero tolerance” policies of all stripes has taught us. ---
**Author:** ![Little\_Nemo](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/little_nemo/32/3120_2.png) [@Little\_Nemo](https://boards.straightdope.com/u/Little_Nemo)\ **Post date:** [March 16, 2013, 12:45am UTC](https://boards.straightdope.com/t/acquitted-conduct-sentencing/652731/75 "2013-03-16T00:45:06Z")
> [@Hamlet](#): > > And, again, “not proven guilty of this one charge beyond a reasonable doubt at trial” does not equal “innocent”. So do you also think that nobody who is charged is ever innocent? Because nobody is ever found innocent at a trial. ---
**Author:** ![Little\_Nemo](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/little_nemo/32/3120_2.png) [@Little\_Nemo](https://boards.straightdope.com/u/Little_Nemo)\ **Post date:** [March 16, 2013, 12:52am UTC](https://boards.straightdope.com/t/acquitted-conduct-sentencing/652731/76 "2013-03-16T00:52:54Z")
> [@Human\_Action](#): > > So you reject uncharged conduct sentencing as well? That’s what I was asking; you’d said that this case didn’t fall under uncharged or dismissed conduct, but not whether they had merit where acquitted conduct did not. I already said I support uncharged conduct sentencing in some situations (and described one common one). > [@Human\_Action](#): > > Further, the defendant _is_ guilty in these cases, including the one from the OP. That individual was guilty of making false statements to police. His sentence for that crime fell within the statutory limits of the crime he was convicted of, in accordance with [Apprendi v. New Jersey.](http://en.wikipedia.org/wiki/Apprendi_v._New_Jersey) I’m relieved to see you acknowledge some limits on judicial power and don’t feel judges should be able to sentence people to any amount of imprisonment they feel like. But we’re discussing the question of whether the judge should base his sentence _on the arson charge_ and not just on the lying charge. If the judge should not sentence a person because he committed arson if that person was found not guilty of committing arson. ---
**Author:** ![Hamlet](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/hamlet/32/2818_2.png) [@Hamlet](https://boards.straightdope.com/u/Hamlet)\ **Post date:** [March 16, 2013, 1:29am UTC](https://boards.straightdope.com/t/acquitted-conduct-sentencing/652731/77 "2013-03-16T01:29:04Z")
> [@Little\_Nemo](#): > > So do you also think that nobody who is charged is ever innocent? Of course not. Why in the world would you think I would? > [@Little Nemo](#): > > Because nobody is ever found innocent at a trial. That’s not the purpose of a trial. The purpose is to make sure the government can prove the defendant guilty beyond a reasonable doubt. And the purpose of sentencing is to try and find a just outcome for the crimes committed. And to reach that just outcome, I think the judge should be able to consider many things, including among them acquitted conduct. [Previous page](https://boards.straightdope.com/t/acquitted-conduct-sentencing/652731.md?page=3)