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Posted: Thursday December 4, 2008 5:25PM; Updated: Thursday December 4, 2008 6:17PM
Michael McCann Michael McCann >
SPORTS LAW

Simpson could be looking at 10 years behind bars

Story Highlights

On Oct. 3 Simpson was convicted on 12 counts of armed robbery and kidnapping

He will be sentenced to a minimum of six years and a maximum of life in prison

Despite prior brushes with the law, Simpson is considered a first-time offender

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O.J. Simpson might not get the maximum sentence because he is a first-time offender.
Pool/Getty Images

On Oct. 3, 2008, a jury sitting before a Las Vegas district court convicted a man who many believe got away with murder exactly 13 years before. The man, of course, was O.J. Simpson, who was convicted on all 12 counts of armed robbery and kidnapping stemming from a poorly-planed, poorly-executed and unmistakably illegal attempt to seize possession of sports memorabilia from a room at Las Vegas' Palace Station hotel.

On Friday morning Clark County District Judge Jackie Glass will inform the 61-year-old Simpson how many years he will spend in a Nevada prison. Simpson will be sentenced to a minimum of six years and a maximum of the remainder of his life in prison. So Simpson will be at least 67 years old before he is a free man again.

For how many years will Glass sentence Simpson? The judge will likely consider a variety of factors in her decision-making.

First, judges normally place significant value in the recommended sentences offered by the defendant and the government. Simpson's attorneys have requested a six-year sentence, the minimum possible under Nevada law, while Nevada's Parole and Probation department has reportedly recommended an 18-year sentence (the same amount recommended for Simpson's co-defendant, the 54-year-old Clarence (C.J.) Stewart). It is not uncommon for judges to pick a number roughly midway between the two recommended numbers. If Glass were to adopt that approach, Simpson would be sentenced to 12 years in prison.

Second, judges typically weigh the criminal record of a defendant. Under the basic premise that repeat offenders deserve to be punished more harshly since they didn't learn their lesson the first time, judges tend to refrain from imposing the maximum possible sentence for first-time offenders.

And yes, Simpson is a first-time offender.

Indeed, despite a widely-held belief that Simpson should have been convicted of first-degree murder on Oct. 3, 1995, for the deaths of Ronald Goldman and Nicole Brown Simpson, he was found not guilty. More than that, Simpson had never been convicted of a crime until two months ago. Simpson is thus a bona fide first-time offender. That is true despite the fact that he pled no contest in 1989 to a spousal abuse charge, meaning he neither contested the charge nor admitted guilt, and the fact that in 1997 he was held civilly liable -- meaning a preponderance of evidence supported the plaintiffs' claims against him -- for the wrongful deaths of Goldman and Brown Simpson. Thus, as a first-time offender, Simpson is poised to receiver a lighter sentence than he would as a repeat offender.

It remains to seen, however, whether Glass views Simpson as a defendant who is deserving or undeserving of his first-time status. To many people, Simpson probably seems like a first-time offender with a very big asterisk next to that status.

Third, Glass will likely consider the impact of Nevada's truth-in-sentencing law on her selected sentence. Truth-in-sentencing refers to the portion of a prison sentence that a convicted defendant must serve before he or she is eligible for release or parole. Unfortunately for Simpson, Nevada employs a uniquely strict truth-in-sentencing approach, with the offender required to serve 100 percent of the minimum period of time determined by the judge. Thus if Glass sentences Simpson to a minimum of six years and a maximum of 10 years in prison, Simpson will have to serve at least six years, regardless of any good behavior while behind bars.

By way of comparison, consider the sentencing of Michael Vick, who in August 2007 pled guilty to federal charges (conspiracy to operate an interstate dog fighting ring) and was sentenced to 23 months in prison. Since federal sentencing is subject to a truth-in-sentencing scheme whereby the convicted defendant must serve at least 85 percent of his sentence, Vick must serve a minimum of about 20 and a half months in prison. Simpson, in comparison, will have to serve 100% of the amount specified by Glass.

As a final point, Glass preserves the option to run sentences for each of the 12 charges concurrently or consecutively, the latter of which would be disastrous for Simpson, as he would then serve time for each sentence, one after the other. First-time offenders are normally not subject to consecutive sentences, but as detailed above, Simpson is no ordinary first-time offender.

Bottom line prediction: Simpson is likely looking at a sentence that will require him to serve at least 10 years behind bars.

SI.com legal analyst Michael McCann is a visiting law professor at Boston College Law School, a law professor at Vermont Law School and the distinguished visiting Hall of Fame Professor of Law at Mississippi College School of Law.

 
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