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September 1, 2005

Adding nuance to the burden battle

Over at the Ninth Circuit Blog, Steve Sady weighs in here on the burden of proof battle that has erupted between Judge Joseph Bataillon and Judge Richard Kopf in the District of Nebraska (details here).  Steve asks a number of questions about Judge Kopf's order (e.g., "is this an advisory opinion?") and asserts that, because "Judge Bataillon's opinion in Okai is limited to statutory construction, the criticism of his purportedly constitutional ruling appears unwarranted."  I, too, have been thinking through some nuances of this issue today, and here are some of my latest thoughts (to add to earlier thoughts assembled in this proof primer):

1.  What is the burden of proof Judge Kopf plans to apply after Booker?  The Supreme Court has never defined a constitutional minimum burden of proof at sentencing, and neither Congress nor the US Sentencing Commission has expressly provided a defined proof standard for federal guideline sentencing.  The Sentencing Reform Act does not speak to this issue at all.  The guidelines in commentary to 6A1.3 state that "The Commission believes that use of a preponderance of the evidence standard is appropriate to meet due process requirements and policy concerns in resolving disputes regarding application of the guidelines to the facts of a case."  However, this guideline has not been officially re-examined since Jones, Apprendi, Blakely and Booker came on the scene, and the same commentary also states that, in each case, the "sentencing court must determine the appropriate procedure in light of the nature of the dispute, its relevance to the sentencing determination, and applicable case law." 

Though Judge Kopf is advising litigants he will not apply the proof standard of beyond a reasonable doubt, he does not indicate what proof standard he does plan to apply.  To my knowledge, this precise issue has not been directly and fully litigated before the Eighth Circuit, and I do not think dicta in a few post-Booker rulings conclusively establishes what proof standard should apply when guideline facts are in dispute.

2.  Do district judges have discretion (or inherent authority) in individual cases to define the applicable proof standard?  Because the Sentencing Reform Act does not speak to burdens of proof and because the guidelines are (intentionally?) vague on this issue, perhaps federal law simply does not define a proof standard but rather leave the applicable burden of proof to the discretion of district judges in individual cases.  This concept might seem peculiar within a sentencing system designed to reduce nationwide sentencing disparity, but one should realize that some other matters of sentencing procedure are clearly a matter of district court discretion — e.g., different district courts likely have different rules about what should appear in presentence reports, about when to have sentencing hearing, etc.

3.  Should we eschew a single applicable proof standard for all guideline determinations?  In a lot of my post-Blakely scholarship, such as my Conceptualizing Blakely piece and a forthcoming Stanford Law Review article, I have been urging a distinction between offense conduct and offender circumstances at sentencing.  Perhaps such a distinction should be relevant for developing applicable proof burdens at sentencing.  Or perhaps the magnitude of the impact of the determination on the sentencing should be a central consideration with a sliding scale of applicable proof standards.  A single proof standard my be more efficient, but it may not always be just.

September 1, 2005 at 09:40 PM | Permalink


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Prof. B, I'm not sure I understand why you say that section 6A1.3 hasn't been "officially" re-examined since Booker. The Commission issued a new Manual to reflect Booker. A court's ordinary interpretive presumption is that government entities are aware of changes in law, and re-codifications therefore are to be read against a background of law existing at the time of re-enactment. That assumption seems particularly powerful here, given that the whole reason for issuance of the updated manual was to account for Booker.

Or, put another way, how do you know that the absence of change reflects an absence of deliberation?

Posted by: A government lawyer | Sep 2, 2005 10:26:15 AM

I'm very puzzled by your assertion that the Commission has "issued a new Manual to reflect Booker." This claim is news to me. I know the USSC has held hearings about Booker and also issued a statement of priorities for the coming year which included Booker items, but nowhere on the USSC's Booker webpage is any indication of the "issuance of [an] updated manual ... to account for Booker."

Please provide some more information ASAP about this updated manual and what it expressly says about Booker. Either I am very out of the loop, or there is some bad information going around concerning the USSC's Booker response.

Relatedly, if others know anything about this purported "updated manual," please use these comments to help clue me in.

Posted by: Doug B. | Sep 2, 2005 11:41:01 AM

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