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January 30, 2005

Requiring proof beyond a reasonable doubt in any legislative fix

In this prior post, I highlighted an argument by Steve Sady here 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.  Though it is debatable whether beyond a reasonable doubt must be the applicable standard under existing law, another subject worthy of debate is whether Congress ought to legislatively define beyond a reasonable doubt as the applicable proof standard in any legislative fix to Booker making the federal guidelines mandatory again.

As discussed last November in a post on the brewing battle over the Bowman fix and as further suggested by recent comments from prosecutors (discussed here), the Justice Department seems to view the so-called Bowman fix (aka "topless guidelines") as the best legislative response to Booker.  (Background on the Bowman fix can be found here and here.)  As I have noted before, DOJ support for the Bowman fix would connote not only that DOJ wants mandatory guidelines, but also that it wants to avoid being required to prove aggravating facts to a jury beyond a reasonable doubt.

Because of the administrative challenges of pleading and proving to a jury all aggravating "guideline facts," it is not surprising that DOJ apparently does not support Blakely-izing the guidelines.  Moreover, because having to prove certain facts to a jury could prove prejudicial to defendants in some settings, there are perhaps conceptual justifications for not requiring all aggravating facts to go before a jury.  (I develop some of these ideas through the offense/offender distinction in my Conceptualizing Blakely article).

However, I do not see a strong conceptual justification for allowing aggravating guideline facts which mandate longer sentences to be proven only by a preponderance of the evidence rather than beyond a reasonable doubt.  Though Watts and Harris (assuming they are still good precedent) suggest the Constitution may allow a preponderance proof standard, applying this civil law standard to facts which mandate increased criminal penalties never seemed quite right to me as a matter of policy. 

Consequently, if the Bowman fix or some other proposed legislative response to Booker seeks to make the guidelines mandatory and also seeks to circumvent juries, I would advocate that the applicable burden of proof for aggravating factors still be beyond a reasonable doubt and not merely preponderance of the evidence.  Though a lesser burden of proof may be constitutionally permissible, it does not seem fair or just when fact-finding will have defined (and potentially severe) criminal punishment consequences.

January 30, 2005 at 08:05 PM | Permalink


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Dr. Berman, Fair and Just don't appear to be factors that the DOJ actually care about. The system is all about getting new defendants to roll or rat out others who are involved in illegal activities. Now that downward departures no longer exist, cooperation no longer helps,(theoretically). Thus the DOJ has lost its most potent weapon for climbing the food chain of criminal leadership. To the typical FBI, AUSA, ect., Fair and Just are a joke, as their main means of expanding investigations has now been lost, along with the potential for advancement and promotion, for bringing in the really big fish. I agree with you wholeheartedly, if there are factors that will increase someone's sentence, those factors should have to be proved BRD, instead of being line items on a probation officers report. Unfortunately, I feel the government couldn't care less, and the more people in prison the better. Remember, the statistics are what matters, not the lives of those who have made a mistake.

Posted by: Bruce | Jan 31, 2005 11:23:29 AM

It sure would be nice if the courts dealing with facts that are in dispute would address the applicable standard. Many have proceeded to the task of finding facts without even discussing what standard was in use,leaving one to speculate that a preponderance standard is still in play. From a defendant's perspective, the burden of persuasion is often the only force holding back all the others forces that would lead to a heavy sentence. Our Sixth Circuit has cryptically suggested that the BRD standard is still applicable. Does anyone have any other guidance from the courts that suggests that this is the standard to be used?

Posted by: Dennis Terez | Jan 31, 2005 12:55:55 PM

It would be shameful if Congress implemented the "Bowman fix," which essentially creates a complex system of mandatory minimum sentences, without reconsidering the makeup of the Guidelines as a whole. I submit that not every niggling two-level increase that the collective imaginations of the DOJ and the USSC have inserted into the guidelines should be worthy of enactment into law by Congress. The Guidelines have become so arbitrary, and have included so many trivial and overlapping sentence increases that, if Congress is going to make them mandatory, the Sentencing Commission ought to be instructed to widen sentencing ranges and remove every enhancement that does not constitute a substantial aggravating factor in a crime. Most of the factors that have been added over the years at the behest of DOJ have been matters that in a saner world would have been left for the government and the defense to argue about before an experienced judge, who could then adjust the sentence, or not, according to the entire context of the case.

The Federal Reports are filled with lengthy, complex and arcane opinions about two-level increases of doubtful significance. If Congress seeks again to make this nonsense binding, it ought at least to simplify the system to obviate the need for the niggling argumentation about minor enhancements that have plagued guidelines practice until now.

It occurs to me that this could be achieved by making the "Bowman fix" applicable only to the sentence obtained by applying the base offense level and the Criminal History Category. Upward and downward adjustments could remain within the discretion of the district court, subject to reasonableness analysis. This would be a far more reasonable system that the pure "Bowman fix" alone.

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