The Double Jeopardy Loophole

Hi-Phi Nation explores how judges can sentence people for crimes they were acquitted of or weren’t even charged with.

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Photo illustration by Slate. Photo by XtockImages/iStock/Getty Images Plus.

On Thanksgiving Day 1990, two people were shot and killed in a cabin in rural Maine. A man named Henry Lombard was acquitted of the double murder but convicted on federal firearms charges related to the crime. The judge in the firearms case sentenced Lombard to life imprisonment without parole, on the grounds that it was more likely than not that he had committed the murders—murders of which he had already been acquitted. How could this happen? What about double jeopardy? On a recent episode of Hi-Phi Nation, Barry Lam spoke to Boston University School of Law professor Gerald Leonard about how and why acquitted and unconvicted conduct is used at sentencing. This transcript has been condensed and edited for clarity.

Barry Lam: There have been many claims made to the Supreme Court that being sentenced for conduct that the government has not convicted you of is a violation of the constitutional rights to a trial by jury and against double jeopardy.

Gerald Leonard: But they have been shot down unceremoniously by the Supreme Court. As long as there is a conviction in place, you can be punished for that offense. If there’s some other offense of which you’ve been acquitted, the facts underlying that offense might be appropriate context for the offense of which you’ve been convicted.

Lam: The Supreme Court has said that there’s no double jeopardy because you’re not placed on trial again for the crime to which you’ve been acquitted. You remain legally not guilty of that crime. Facts admitted during sentencing are there to figure out whether there were aggravating or mitigating factors to the crime you were convicted of committing.

Here’s an example: Two different people sell a gram of cocaine to someone else—that’s the offense. They both plead guilty without any trial or testimony and come before the judge for sentencing. That judge is presented with facts by the lawyers that one of these people is a recreational user who offered some cocaine to a friend at a club and the friend gave them a dollar bill in return as a joke; the other person is a regular dealer near the local high school, and the buyer was underage.

Leonard: They’re very different offenders violating the very same statute, and to punish them identically seems to me morally wrong, completely out of touch with all of our traditions.

Lam: The tradition is one where every sentence should be individualized. The sentence should depend on the person and person’s circumstances when committing the crime. Were there factors that make someone’s crime a little more excusable, a little more justifiable, or, in contrast, even more heinous? This is called contextualizing the circumstances of a crime.

Leonard: But you have to allow a certain amount of fact-finding at sentencing.

Lam: But just what kinds of facts it’s OK to allow and what kinds of facts are not OK to allow is not clear in the law, and it’s not even clear in our moral reactions. In 1994, a college student in Fayetteville, North Carolina, named Anthony Barber began working as a driver for a drug dealer. The drug dealer stopped paying Barber for the rides, and eventually Barber and his friend David Hodge bought a shotgun, drove with the dealer out in the car, and shot him in the back of the head. Because Barber had no priors and for various reasons known only to the prosecutor, both Barber and Hodge pleaded guilty to second-degree murder.

Leonard: First-degree murder requires a premeditated killing—that is, you’ve decided ahead of time that you mean to kill someone. If you kill somebody unjustifiably but you haven’t premeditated it, then what you’re guilty of is most likely second-degree murder.

Lam: But Barber admitted in a post-plea statement that he did premeditate the murder. He planned it out with his friend days in advance. The judge had right in front of him an admission of premeditation. Premeditated murder was uncharged conduct, conduct the state couldn’t charge Barber with because of the plea bargain. But an admission of premeditation really does seem to contextualize the murder that Barber did commit. If you thought your friend killed someone in the heat of the moment and you find out later he had planned it for days, it does make it worse. That was the reasoning of the judge, who sentenced Barber to prison time consistent with first-degree murder. That’s a sentence Leonard does not believe is just.

Leonard: I would argue that a trial judge cannot take premeditation into account as a contextualizer of second-degree murder because it doesn’t contextualize second-degree murder—it creates a whole new offense that we already have on the books, called first-degree murder. So if the conviction is second-degree murder, the punishment has to be for second-degree murder.

Lam: Leonard argues that a judge should not be allowed to contextualize a crime by using facts that make the crime into another crime. For Leonard, using facts that turn a crime into another crime is not contextualizing—it’s double charging. This would mean that most uses of acquitted and uncharged conduct would be illegitimate in sentencing because by definition you’re using different chargeable crimes to contextualize this person’s crime.

Leonard’s test sounds reasonable, but it has some rather paradoxical implications. It seems to depend on accidents of what we decide to criminalize and what we don’t. There’s a case where a judge sentenced a man to 30 years for a second-degree murder because the judge found it particularly heinous that the man stabbed the victim 16 times. Only first-degree murderers get time like that. Leonard’s test would make this sentence OK because there’s no unique crime of homicide by 16 stabbings. So 16 stabbings can be an aggravating factor in sentencing.

I think that’s OK, but is it OK just because there happened to be no law criminalizing homicides by 16 stabbings? Legislatures have been pretty creative in recent years. We have different crimes for different amounts of cocaine, different crimes for powder versus crack cocaine, even crimes concerning whether you could use butter or margarine. It’s weird to think that if lawmakers suddenly criminalize the number of stabbings in a murder then all of a sudden it’ll be like premeditation, something you can’t admit as an aggravating factor in sentencing. Why isn’t it just whatever is aggravating is aggravating, and whatever is mitigating is mitigating? Let the judges use all of it—like we do now—or let them use none of it.

[to Leonard] What if we just cut out the use of unconvicted conduct completely? In fact, let’s not contextualize it at all—we make almost complete uniformity across crimes and sentences. Is that a solution? And if so, what is to be said against that?

Leonard: For most people, there are meaningful differences between particular offenders who fit the same offense but whose culpability or whose ongoing dangerousness seems so different that it just seems deeply wrong to punish them in the same way. Having what’s sometimes referred to as a flat time system—you do this offense, you get that punishment, end of story, no discretion—is not something we’ve ever really done in our system.

Lam: Why can’t problems like this be settled at the statute phase versus the sentencing phase? Instead of letting judges make the discretionary decision about what’s aggravating and mitigating, you let the criminal law do that. You make a different crime every time you think someone deserves a different sentence.

Leonard: Well, in principle they can. You can have very, very fine-grained statutes. You’ve stolen a thousand dollars, you get this much. Between $2,000 and $5,000, you get this much. Between $5,000 and $10,000, you get this much.

Lam: It gets really pedantic very quickly.

Leonard: Yeah. I mean, federal guidelines operate on a table that has 43 offense levels, and there are point systems, and they still leave an out for the judges to exercise discretion in cases where all of that work in the guidelines doesn’t adequately cover the facts of the case.

Lam: There’s no way to make it fine-grained enough.

Leonard: There’s no way to mechanize it completely, at least not in a way that makes us all feel good about the outcome.

Lam: Ultimately there’s no way around the problem. We have a strong, moral commitment that individual circumstances can aggravate or mitigate responsibility for a crime. Yet we don’t know ahead of time what facts are aggravating and what are mitigating. When we try to figure it out, we end up with absurdly ornate laws that never capture the full range we originally wanted. And when we fail, we end up with the need for judges’ discretion anyway. And finally, there’s the public demand for substantive justice: the demand that the actual bad guys get put away and punished for the crimes they actually did.

[to Leonard] From the other side, I found a lot of cases where the state wasn’t able to prove that some serial killer was a serial killer, so they got them on credit card charges or something like that. I’m trying to look at it not from a professor’s vantage point about procedures of justice and constitutionality but [instead the idea that] there are some pretty bad people who most likely did something, and judges have a tool that they actually don’t use all the time but they use when they’re convinced that somebody’s going to escape justice if they don’t use it. That way of looking at it makes it sound like this is there not as a loophole for the state to do extra violence on people who don’t deserve it but to catch the people that can easily slip through the system.

Leonard: What you’re suggesting is this doesn’t get done that often, but when you need to catch the serial killer and all you’ve got is credit card fraud, then that’s what you do. And we know that there are going to be, shall we say, adaptations for the system around the edges, but you’re suggesting it’s rare. And the thing is, we have no idea if it’s rare. For one thing, how do we know that that serial killer actually is a serial killer? Hasn’t been convicted of it, but somebody, the police, prosecutor, judge, they’re convinced of it, but they aren’t able to convict the person. So are we really OK with that? I mean, there might be the rare case where you and I would both go, “Dodged a bullet there, got the serial killer on credit card charges.” But in fact, the way the system works is that 95 percent of convictions are had through guilty pleas and not through trials. And when you have a guilty plea, there’s very little transparency about what’s going on.

So the kind of punishment for unconvicted conduct that we’re talking about is potentially very, very common. We don’t know because we don’t get to look behind guilty pleas. What we do know is that the capacity to punish for unconvicted conduct is one of the tools that gives prosecutors leverage in pushing people to plead guilty to things that they may or may not have done and to accept facts that may or may not be accurate.

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