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December 3, 2017

"Disproportionate Impact: An Impetus to Raise the Standard of Proof at Sentencing"

The title of this post is the title of this student note authored by Anthony LoMonaco recently published in the October 2017 issue of the NYU Law Review.  Here is its abstract:

It is well-known that in a criminal trial, the prosecution must prove culpability beyond a reasonable doubt.  But during the subsequent sentencing phase, the standard of proof is much lower: a preponderance of the evidence.  This relatively low standard can lead to a problem known as “disproportionate impact.”  Disproportionate impact occurs when evidence of additional criminal activity is introduced during the sentencing phase and becomes more determinative of the defendant’s punishment than the actual crime of conviction.  Such evidence can subject criminal defendants to significantly more punishment without the safeguards available at a criminal trial, and it may include uncharged and acquitted crimes.

In response to this issue, some circuit courts fashioned an exception to the preponderance rule, raising the standard of proof to the clear and convincing standard to protect the due process rights of criminal defendants. However, use of this exception was curtailed in all circuits but the Ninth when the Supreme Court rendered the Sentencing Guidelines advisory in 2005.  This Note analyzes the lopsided circuit split surrounding the disproportionate impact exception and challenges the notion that the exception is no longer necessary because the Guidelines have become advisory.

December 3, 2017 at 01:18 PM | Permalink


This indoctrinated victim of the criminal cult enterprise does not understand. Effective sentencing addresses the problem person, not the problem act. So, if a shoplifter is executed because he is a serial killing drug kingpin, the death sentence for shoplifting delivers great value to the public safety. From the reverse direction, a rape victim stabs her rapist multiple times, her going home with therapy emphasizing the avoidance of high risk situations is the best value. Her taking up a prison bed is a total ripoff to the tax payer. Go back to your job and to taking care of your child.

This pro-criminal victim of the cult should not be beaten. His criminal procedure prof should, and with metal rods.

Posted by: David Behar | Dec 4, 2017 11:12:15 PM

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