Punishment Without Conviction: Controlling The Use of Unconvicted Conduct in Federal Sentencing

Berkeley Journal of Criminal Law 17:2 Fall 2012

Boston Univ. School of Law, Public Law Research Paper No. 13-21

38 Pages Posted: 4 Jun 2013  

Gerald Leonard

Boston University School of Law

Christine Dieter

Boston University

Date Written: November 1, 2012

Abstract

Federal sentencing law is widely applied to punish offenders not only for the offenses of which they have been convicted, but also, in the same proceeding, for offenses of which they have not been convicted. Unlike many scholars, we accept that federal courts can, in the right circumstances, legitimately enhance sentences for facts and conduct found at sentencing, even when those facts and conduct constitute uncharged offenses or even charges on which the defendant actually won an acquittal. But we argue that in identifiable cases, the use of such sentencing facts does cross the line from appropriate contextualization of the offense of conviction to punishment for a separate offense of which the defendant has never been convicted. We demonstrate that crossing this line contravenes the Sentencing Reform Act, the Federal Sentencing Guidelines, and the Constitution. We then offer a principle and a mode of analysis for ensuring that courts punish only for offenses of conviction, even as they do substantial fact-finding at sentencing. We examine cases of federal sentencing for second-degree murder to explain how this principle works and then explain the benefits and challenges of applying the principle more generally.

Keywords: sentencing, criminal law

Suggested Citation

Leonard, Gerald and Dieter, Christine, Punishment Without Conviction: Controlling The Use of Unconvicted Conduct in Federal Sentencing (November 1, 2012). Berkeley Journal of Criminal Law 17:2 Fall 2012; Boston Univ. School of Law, Public Law Research Paper No. 13-21. Available at SSRN: https://ssrn.com/abstract=2273303

Gerald Leonard (Contact Author)

Boston University School of Law ( email )

765 Commonwealth Avenue
Boston, MA 02215
United States
617-353-3138 (Phone)
617-353-3077 (Fax)

Christine Dieter

Boston University ( email )

595 Commonwealth Avenue
Boston, MA 02215
United States

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