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June 7, 2006

More on Grier and the post-Booker burden of proof

As detailed here, a split Third Circuit panel on Tuesday rejected the claim that the Due Process Clause is offended by using a preponderance standard of proof in guideline calculations.  Though the opinions in Grier are long, they are often more laborious than enlightening.  By my lights, the opinions fail to bring much nuance to the the modern application of the due process clause in sentencing guideline systems.

Steve Sady in this post over at the Ninth Circuit Blog spotlights that the Third Circuit in Grier failed to explore the Doctrine of Constitutional Avoidance.  Relatedly, Grier has little discussion of the implications of the Booker merits majority, and it lacks discussion of the rule or lenity or other important constitutional and statutory principles that ought to inform the due process analysis after Blakely and Booker.  (Some of these ideas are set out and linked in this post and this post.)

Moreover, as Peter G. notes in the comments here, the majority opinion in Grier gratuitously declares that Blakely and Booker call for overruling the Third Circuit's 1990 decision in Kikumura, in which the late Judge Becker held that facts which can greatly increase a sentence may require proof by clear and convincing evidence.  It is remarkable that the Grier majority found a way to apply Blakely and Booker to reduce defendants' procedural rights at sentencing in the Third Circuit.

That all said, the ugly burden-of-proof work in Grier should not completely eclipse the notable resolution of the appeal.  Though the Grier majority approves the application of the civil burden of proof in federal sentencing, it remands a within-guideline sentence because the district court did not adequately explain its application of the 3553(a) factors.  Grier thus stands for the important principle that the Third Circuit will not accept a district court's cursory assertion that it has considered 3553(a) factors, even when the court imposes a within-guideline sentence.

June 7, 2006 at 12:25 AM | Permalink


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The standard of proof for involuntary commitment; criminal defendants are certainly involuntarily committed, was explained in ADDINGTON v. TEXAS, 441 U.S. 418 (1979)
The preponderance of the evidence standard is utilized when the “risk of error” is shared” by both parties in “equal fashion”. “The function of a standard of proof, as that concept is embodied in the Due Process Clause and in the realm of factfinding, is to "instruct the factfinder concerning the degree of confidence our society thinks he should have in the correctness of factual conclusions for a particular type of adjudication." In re Winship, 397 U.S. 358, 370 (1970) (Harlan, J., concurring). The standard serves to allocate the risk of error between the litigants and to indicate the relative importance attached to the ultimate decision.”… “Since society has a minimal concern with the outcome of such private suits, plaintiff's burden of proof is a mere preponderance of the evidence. The litigants thus share the risk of error in roughly equal fashion”.
The "beyond a reasonable doubt" standard historically has been reserved for criminal cases. This unique standard of proof, not prescribed or defined in the Constitution, is regarded as a critical part of the "moral force of the criminal law," In re Winship, 397 U.S., at 364 , “The heavy standard applied in criminal cases manifests our concern that the risk of error to the individual must be minimized even at the risk that some who are guilty might go free”. Patterson v. New York, 432 U.S. 197, 208 (1977).
The criminal courts, are operating at the apex of human understanding and applying societies ultimate sanction; banishment to prison, therefore adopting a "standard of proof is more than an empty semantic exercise." Tippett v. Maryland, 436 F.2d 1153, 1166 (CA4 1971) (Sobeloff, J., concurring in part and dissenting in part), cert. dismissed sub nom. Murel v. Baltimore City Criminal Court, 407 U.S. 355 (1972). In cases involving individual rights, whether criminal or civil, "[t]he standard of proof [at a minimum] reflects the value society places on individual liberty." 436 F.2d, at 1166.
The function of legal process is to minimize the risk of erroneous decisions. See Mathews v. Eldridge, 424 U.S. 319, 335 (1976); Speiser v. Randall, 357 U.S. 513, 525 -526 (1958). Significant deprivation of liberty that requires due process protection. See, e. g., Jackson v. Indiana, 406 U.S. 715 (1972); Humphrey v. Cady, 405 U.S. 504 (1972); In re Gault, 387 U.S. 1 (1967); Specht v. Patterson, 386 U.S. 605 (1967).
Criminal defendants are involuntarily committed to prison, but are not allowed even the standard of proof required by all states of involuntary commitment of the mentally ill. “Increasing the burden of proof is one way to impress the factfinder with the importance of the decision and thereby perhaps to reduce the chances that inappropriate commitments will be ordered.” Id.
The Addington Court found “The individual should not be asked to share equally with society the risk of error when the possible injury to the individual is significantly greater than any possible harm to the state. We conclude that the individual's interest in the outcome of a civil commitment proceeding is of such weight and gravity that due process requires the state to justify confinement by proof more substantial than a mere preponderance of the evidence.” Id.

Posted by: Barry Ward | Jun 7, 2006 10:25:46 AM

Thanks, Doug, for highlighting my comment on Grier. I have just posted a critical correction to that comment.

Posted by: Peter G | Jun 7, 2006 2:44:51 PM

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