The Standard of Proof at Sentencing Hearings Under the Federal Sentencing Guidelines: Why the Preponderance of the Evidence Standard Is Constitutionally Inadequate
Stephanie C. Slatkin | 1997 U. Ill. L. Rev.
In 1984 Congress, responding to public dissatisfaction with the perceived arbitrariness of existing sentencing schemes, vested in the U.S. Sentencing Commission the authority to devise stringent federal sentencing guidelines. As part of the effort to divest federal judges of discretion in sentencing, the Sentencing Guidelines created a bifurcated system of fact-finding that allows a prosecutor to allege and the judge to find certain facts at the sentencing phase of a criminal prosecution. If these facts constitute "relevant conduct" or "aggravating circumstances" as defined by the Sentencing Guidelines, the presiding judge may depart upwards from the sentencing range prescribed by the guidelines. Perhaps more importantly, proof of these collateral facts by a mere preponderance of the evidence is sufficient to warrant departure.
In this note the author challenges the constitutionality of applying the preponderance standard to the sentencing phase of a criminal proceeding. Arguing that the Sentencing Guidelines impermissibly evade due process requirements by reclassifying elements of charged offenses as sentencing factors, the author recommends a return to the beyond a reasonable doubt standard for proof of sentencing factors that are, in actuality, uncharged offenses or elements of the underlying offense. Additionally, for traditional sentencing factors that are in fact collateral, the author advocates use of the clear and convincing evidentiary standard.