Amicus brief in Third Circuit case on burdens of proof

As noted in prior posts assembled here, the Third Circuit in US v. Grier will consider en banc appropriate burdens of proof in post-Booker federal sentencing.  Today I received a copy of a Grier amicus brief from NACDL and the National Association of Federal Defenders.  This brief, which can be downloaded below, advocates a standard and burden of proof beyond a reasonable doubt for all determinate facts which contribute upward to the judge's sentencing decision (it also discusses proof by clear and convincing evidence as a fallback, and suggests that reliance on either statutory construction or supervisory power can avoid a decision on constitutional grounds).   Here is a snippet:

Since before the founding of our Republic, the requirement that the state in criminal cases bear a burden of proof beyond a reasonable doubt has protected the people's liberty, shielded accused persons from unwarranted stigmatization, allocated the risk of erroneous decisions during the prosecution of criminal charges, acknowledged the extraordinary importance of the underlying decisions being made, and provided society with sound reasons to have faith in the accuracy and reliability of our criminal justice system.  As detailed in the following Sections, each of those goals is implicated when a federal criminal defendant's Guidelines range is calculated by the district court, and each is threatened when that range is selected on the basis of facts determined in reliance on a less exacting standard of proof.  This Court should therefore hold that as a matter of Fifth Amendment due process, such fact-finding must be subjected to the time-honored standard of proof beyond a reasonable doubt.

Download grier_amicus_brief_and_addendum.pdf

Related posts on Grier and burdens of proof:

• Top-side brief in Grier proof standard Third Circuit en banc appeal
• Third Circuit specifies issues for Grier en banc
• Major Third Circuit ruling on post-Booker burden of proof
• More on Grier and the post-Booker burden of proof
• Third Circuit taking burdens en banc
• Burdens of proof and a new due process of sentencing
• More about beyond a reasonable doubt at sentencing
• Revised draft of Pondering Modern Sentencing Process
• A post-Booker burden of proof primer