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January 21, 2005

Burdens of proof and a new due process of sentencing

Steve Sady over at the Ninth Circuit blog has this important and powerful post arguing that, after Booker, beyond a reasonable doubt (and not preponderance of the evidence) should be the applicable standard of proof for disputed facts at federal sentencing.  Among the potent elements of Steve's argument is its reliance on statutory construction principles layered on top of constitutional concepts.

In addition to noting Steve's extremely valuable post, I want to spotlight the broader idea that the reasoning of Justice Stevens' merits majority to support the Court's interpretation of the Sixth Amendment could — and I think should — engender a wholesale reconsideration (and invigoration) of due process concepts at sentencing.  As I discussed at length in this post, I found highly significant that Justice Stevens' opinion for the merits majority in Booker expressly discussed the impact of modern sentencing reforms on the Court's Sixth Amendment jurisprudence.  See Stevens slip op. for Court at 12.   Part of why this passage caught my eye was because it could be readily recast so as to raise new arguments about the demands of due process in modern sentencing systems. 

Consider specifically how changing the Sixth Amendment/jury right language to Fifth Amendment/due process language in the key passage of Justice Stevens defense of the Court's ruling would seem to breathe new life into new due process claims.  My alterations are in bold.

Discussing the "new trend in the legislative regulation of sentencing," Justice Stevens explains that "the Court was faced with the issue of preserving an ancient guarantee [of due process] under a new set of circumstances:"

The new sentencing practice forced the Court to address the question how the right of [due process] could be preserved, in a meaningful way guaranteeing that [procedural protections] would still stand between the individual and the power of the government under the new sentencing regime.  And it is the new circumstances, not a tradition or practice that the new circumstances have superseded, that have led us to the answer first considered in Jones and developed in Apprendi and subsequent cases culminating with this one.  It is an answer not motivated by [Fifth] Amendment formalism but by the need to preserve [Fifth] Amendment substance.

To reiterate a point I make in my recent article in the Winter 2005 issue of the ABA's Criminal Justice magazine, until Apprendi and Blakely came along, few seriously questioned sentencing structures that still relied lax procedures for proving the truth of facts that could lead to extended sentences.  But I now read the language of Justice Stevens' opinion for the merits majority in Booker to support the idea, long overdue, that we should not blindly follow old constitutional precedents when examining and applying a radically new sentencing structure.

January 21, 2005 at 05:31 PM | Permalink


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(Isn't it convenient that both Blakely and Booker begin with a 'B'? That way my screen name doesn't have to change much! Thanks federal courts!)
Yes, Prof. Berman, I agree with you regarding the due process considerations. Especially since a due process analysis most closely targets the core harms that AS (and now JPS) identify in Booker and Fanfan (and I suppose the Court began to identify in Apprendi). And it's the core problem that MOST citizens have with the Guideliens (how many posts here say "and my ___ was put away for all these years because of these so-called enhancements that really weren't true..."). If you put the government to its burden on the enhancements, at least convicts can have a sense that justice has been done (or default back to "my lawyer f@#%!@ me" ... at least that's not an overarching systemic complaint)

Posted by: District Clerk Battling Booker | Jan 23, 2005 4:39:53 PM

doug - our office(incl peter goldberger who is of counsel)to the firm has just completed an article on booker for my quarterly column on federal sentencing for aba crininal justice magazine -- if you want to post it on your blog --let me know--alan ellis

Posted by: alan ellis | Jan 30, 2005 3:22:49 PM

Doug, I'm not good at this, I composed this long e-mail and I lost it. None the less, I am the wife of one of the defendendants of UNITED STATED v. CLOEMAN.
This info is on your web site. We are in the appeals process and time is of the essence. The attorneys who are representing us are doing so "pro bono". I don't understand how the Juge can, at sentencing, declare a "mini trial", so as to "perfect it's position" since it lost the trial. Not notiflng the defense of such action, so the defense would be prepared ":at sentencing" to properly, refute the chargew with documentation with data, defend itself". Help me. I do not see how the Judge's statement "another bite of the apple" gives him this lattitude, or that these fact do not, as such violate the defendents 5th and 6th amendments rights. The Judge would not allow the defense to bring these issues up at trail, including other issues, such asd the 41E., which would have validated the Err of the charges against them. What do we need to do to bring this to the attention of the Appellat Judges and to serve Justice. Anxiously your reply, Marilyn

Posted by: marilyn | Dec 31, 2006 10:31:48 PM

my son comes up for sentencing on dec fifth and we have no funds for a constitutional federal lawyer. he is being charged with two counts of 18 1221 which is totally untrue. transcripts even shoow the FBI was lying but my son was not allowed to review these because they were given him when he walked into the court that afternoon. do you know of any one that can assist. he is is wisconsin. it started in kansas city then they moved him to brown county jail. then a week ago they moved him to juneau, wis knowing he had to be moved back in two weeks to brown county jail in green bay. this has not allowed him time nor pen paper etc since he is pro seu. car you help in any way or do you know of anyone time is so shor. i await your reply sincerely caro davis 310-328-8884

Posted by: carol | Nov 27, 2008 9:25:45 AM

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In the body of your email, please indicate if you are a professor, student, prosecutor, defense attorney, etc. so I can gain a sense of who is reading my blog. Thank you, DAB