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Preponderance of Evidence Standard at Sentencing

NCJ Number
American Criminal Law Review Volume: 29 Issue: 3 Dated: (Spring 1992) Pages: 907-918
S M Salky; B G Brown
Date Published
12 pages
This article argues that the liberty interests associated with the Federal sentencing guidelines should require that the burden of proof to establish facts in the sentencing decision should be "beyond a reasonable doubt" rather than the current "preponderance of the evidence."
The U.S. Supreme Court's consideration of due process at sentencing has concerned only the liberty interest created by the 5th and 14th amendments. A liberty interest protected by due process requirements may, however, also be created by a statute or a binding administrative regulation. A statute or regulation creates a liberty interest if mandatory language in the statute or regulation "places substantive limits on official discretion." The Sentencing Reform Act, under which the sentencing guidelines were developed, contains the following mandatory language that places substantive limits on judicial discretion: "The Court shall impose a sentence of a kind, and within the range, (set forth in the Guidelines), unless the court finds that there exists an aggravating or mitigating circumstance ...." This is clearly a restriction on judicial discretion. Under the sentencing guidelines, the court's factual finding at sentencing regarding "relevant conduct" and other unadjudicated issues often has a far greater impact on the sentence than the underlying finding of guilt. Months, indeed years, of a defendant's sentence often turn on the court's factual findings in the context of the sentencing decision. The burden of proof in the sentencing factfinding, therefore, should be "beyond a reasonable doubt." 54 footnotes