Consideration of Dismissed Charges at Sentencing

In many states, judges may factor dismissed charges into sentences.

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Most state and federal courts have held that judges can consider uncharged crimes and even acquitted charges at sentencing. It follows that most courts allow judges to consider dismissed charges as well.

Sentencing Considerations: Dismissed Charges

Judges generally have the discretion to consider a wide variety of factors when sentencing criminal defendants. In most states, the judge isn't bound by all the rules of evidence that apply during trial. The result is sentences that are partially based on information that wouldn't be admissible at trial and that hasn't been proven beyond a reasonable doubt. This can come as quite a shock to a defendant who has had a charge dismissed either before trial or as part of a plea bargain, only to hear the judge mention that charge as a factor in determining the sentence.

Federal sentencing law goes so far as to say that "[n]o limitation shall be placed on the information concerning the background, character, and conduct of a person convicted of an offense which a court...may receive and consider for the purposes of imposing an appropriate sentence." (18 U.S.C. § 3661.) Although courts have held that the information must be reliable. (U.S. v. Heckel, 570 F.3d 791 (7th Cir. 2009).)

Limits on Considering Dismissed Charges in Sentencing

Despite judges' wide latitude at sentencing, some states have set limits on considering dismissed charges. Among these limits are those providing that judges can't factor in dismissed charges if:

  • The charge was dismissed as part of a plea bargain. In some states, if a charge was dismissed as a condition of a plea, the judge may not consider it when fashioning the sentence. But, even in many of these states, judges can still consider a dismissed charge if the facts underlying it are closely related to the charge the defendant was convicted of. They may also consider the dismissed charge if the defendant consents as part of the plea agreement. Also, a prosecutor might agree to dismiss a charge simply because it would trigger a stiff mandatory sentence—in that instance, the judge may be allowed to consider it.
  • Proof of the dismissed charge was unreliable. Even though most states don't apply the rules of evidence to sentencing hearings, the judge may not be able to consider a dismissed charge if proof of it is unreliable for some reason. The charge would be unreliable if, for example, it's based on mere rumor.
  • The defendant didn't have an opportunity to challenge the dismissed charge. Some states will allow a judge to consider a dismissed charge only if the defendant either admitted it or failed to deny it. Many states require that the defendant have an opportunity to deny the truth of the charge, and even to testify and cross-examine witnesses to try to disprove it.
  • State law doesn't allow it. Some states simply don't allow judges to use dismissed charges at sentencing under any circumstances.

Consequences for Improperly Considering Dismissed Charges in Sentencing

Even states that limit judges' consideration of dismissed charges may still let a sentence stand if the judge had other valid reasons for imposing it. Generally, higher courts won't overturn a judge's sentence unless it results from an "abuse of discretion." So, even if the judge improperly considered a dismissed count, an appeals court probably won't overturn it if the judge gave other, proper justifications for the sentence.

Consult a Lawyer

Criminal sentencing is one of those areas of law that differs greatly between federal and state courts, as well as from state to state. Only an experienced attorney familiar with the laws of your jurisdiction can properly advise you about the pros and cons of going to trial or agreeing to a plea. A criminal defense lawyer can effectively represent your interests at each stage, including sentencing, and determine whether you have a viable challenge to a judge's sentence.

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