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  And it is the new circumstances, not a tradition or practice that the new circumstances have superseded, that have led us to the answer first considered in Jones and developed in Apprendi and subsequent cases culminating with this one.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.