Boston University School of Law

Punishment Without Conviction:
Controlling the Use of Unconvicted
Conduct in Fedral Sentencing

Gerald Leonard
Boston University School of Law

Christine Dieter
Boston University School of Law (JD 2012)

Berkeley Journal of Criminal Law 17:2 Fall 2012
Boston University School of Law Public Law & Legal Theory Paper No.13-21
(June 5, 2013)


 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.


Adobe Acrobat Reader v3.01 or greater is required to view this paper.
To obtain a free copy, click the button below

Gerald Leonard Contact Information
Boston University School of Law
765 Commonwealth Avenue
Boston, MA 02215
617-353-3138 (Phone)
617-353-3077 (Fax)


Christine Dieter Contact Information
Boston University School of Law (J.D. 2012)



This draft can be also found at the link below: