When a judge decides a criminal sentence, he or she usually has discretion to increase or decrease that sentence depending on a number of factors. One of those factors is whether the defendant has previously committed crimes.
That all seems well and good. But a judge can increase the sentence even when the defendant was acquitted for those crimes. He or she only need to find that a preponderance of evidence indicates that the defendant committed the previous crime.
Thus, in the example of the OJ Simpson robbery verdict, the judge could theoretically give OJ a harsher sentence because of the allegations that OJ committed murder. (The sentence would still have to be within the bounds of robbery sentences.)
What do people think of that? Does it strike you as a fair? Is it good policy to allow this?
My initial reaction is that it is unfair. But on reflection, I suppose it is no more unfair than any other increase in sentence because of a judge’s finding–whether it is based on the defendant’s character, remorse, etc. Perhaps that means sentencing should be done by juries?