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December 10, 2017

Is due process satisfied by a "minimal indicia of reliability" standard for key sentencing evidence and determinations?

The question in the title of this post is prompted by an opinion issued earlier this year by the Supreme Court of Delaware in Smack v. Delaware, No. 601 (Del. Oct. 11, 2017) (available here). The first paragraph of the Smack opinion provides the basic facts and procedural issue:

Adrin Smack pleaded guilty to four counts of drug dealing, one count of possession of a firearm by a person prohibited, and one count of conspiracy second degree.  At sentencing, the State claimed that Smack acted as a “kingpin” in a drug operation and should be sentenced to the fifteen years recommended by the State instead of the eight years recommended by the defendant.  Smack requested an evidentiary hearing as part of sentencing, and argued that the State must prove his status as a drug “kingpin” by a preponderance of the evidence.  The Superior Court denied Smack’s request for an evidentiary hearing and ruled it could consider evidence offered by the State at sentencing if it met a “minimal indicia of reliability” standard. The court sentenced Smack to an aggregate of fourteen years at Level V followed by probation. Smack appeals and argues the Superior Court violated his due process rights by denying him an evidentiary hearing and applying the wrong burden of proof at sentencing.  According to Smack, the State was required to prove by a preponderance of the evidence that Smack was a drug kingpin.  Because this Court has previously upheld the use of a minimal indicia of reliability standard to consider evidence offered at a sentencing hearing, and due process does not require an evidentiary hearing, we affirm the Superior Court’s decision.

Here is the heart of the Delaware Supreme Court's analysis of the issue and rejection of the defense's contentions (with footnotes removed):

First, this Court settled the evidentiary standard in Mayes v. State, holding that “in reviewing a sentence within statutory limits, this Court will not find error of law or abuse of discretion unless it is clear from the record below that a sentence has been imposed on the basis of demonstrably false information or information lacking a minimal indicium of reliability.”  Smack argues Mayes does not apply because the standard was not contested.  But the fact the standard was not at issue is irrelevant — the Court explicitly stated the sentencing judge “comported with due process by relying on information meeting the ‘minimal indicium of reliability beyond mere allegation’ standard.”  Subsequent cases rely on Mayes in applying this standard.

Smack relies on a series of federal cases where the court applied a preponderance of the evidence standard to establish facts warranting a sentence enhancement under the federal sentencing guidelines.  According to Smack, the same burden of proof should apply to the State when it argued for a harsher sentence based on Smack’s status as a drug kingpin.  The federal cases, however, are inapposite.  Under the federal sentencing guidelines, the judge must find facts at sentencing using evidentiary burdens because those factual determinations can cause an increase in the sentencing ranges under the guidelines.  Here, Smack’s guilty plea resulted in a sentencing range of two to seventy-six years. To fix the sentence within that statutory range, the judge was entitled to consider all facts that had a minimal indicia of reliability — including the intercepted text messages and phone conversations that led to the seventy-seven charges of drug dealing brought against Smack.  The court could and did find from these facts that Smack was more than a street-level drug dealer.

As hard-core sentencing fans know, the Supreme Court three decades ago in McMillan v. Pennsylvania, rejected a challenge to a Pennsylvania statute's use of a preponderance-of-the-evidence standard in the application of a mandatory minimum sentencing statute.  Chief Justice Rehnquist in that opinion explained why the Court had "little difficulty concluding that ... the preponderance standard satisfies due process."  Of course, aspects of McMillan were overturned in Alleyne v. US with respect to any fact-finding that formally alters any legal limit of a judge's sentencing discretion, but that decision itself stressed it was not contradicting "the broad discretion of judges to select a sentence within the range authorized by law."  

Through communications with the attorney representing in the defendant in this case, I have learned that a cert petition is in the works.  Given the remarkable reality that we have gone nearly 230 years into our constitutional history without having come close to settling just what due process means at sentencing, I think it would be great (and long overdue) for SCOTUS to take up a case like this.

December 10, 2017 at 09:02 PM | Permalink


The lawyer is too stupid to understand what is self-evident to everyone else, including prior Justices of the Supreme Court. Even the stupidest people in our country, prior Justices, understood it.

Sentencing has only one real benefit, incapacitation. The rest is lawless violation of the Establishment Clause, or lawyer quackery.

You give the Italian death penalty to a shoplifter. He is also a serial killing, drug kingpin, with 100 murdered victims in his past. All witnesses are too terrorized to testify. You will never reach a preponderance standard. The benefit of sentencing is incredibly high.

If you fine him $50, and warn him about shoplifting, sentencing is pro-criminal threat to our society.

Posted by: David Behar | Dec 11, 2017 1:28:36 AM

What is the relevance of reliability? I thought under Crawford we got rid of the reliability standard. True, that is in a slightly different context but I think the point applies across the board. Whether a fact is /reliable/ or not has nothing to do with whether said fact is /true/ or /credible/.

So I don't see the problem here as a "minimum" vs "preponderance" of the evidence. I see the issue is why is the court sounding in reliability at all.

Posted by: Daniel | Dec 11, 2017 12:51:32 PM

I feel like we demand more of police before obtaining search warrants than this standard. Regardless, there was a similar issue in a DC case a couple years ago (Ball, I believe), but the Supreme Court denied cert. I suspect, one day, they'll have to address these issues of just what level of evidence is needed for a Judge to give a harsher sentence.

Posted by: Erik M | Dec 11, 2017 4:34:09 PM

Several factors are swirling in this case, and it's going to be a national landmark case, affecting Due Process.

1. Delaware State Prosecutors in Smack and one other case cited by Smack (Davenport v Phelps) are insisting minimal indicia of reliability is enough to decide guilt and sentencing. Del. Supreme Court decided appeals on basis of minimal. The State claimed in its "Replies" to the Federal 2254s that Smack & Davenport couldn't cite Federal cases of "preponderance" and impose those standards on State cases. WRONG !

2. State of Delaware sentencing Rule 1101 sets aside all those legal and moral standards of any case in determining guilt, stating that the Prosecution may present any evidence at sentencing (even new evidence) to the court. In both cases, State knowingly presented questionable and inaccurate information in an effort to enflame the court's decision-making process on a term of sentence. In Davenport, the material was withheld from Defense until the day before sentencing while the court had the damning information for 10 days. Unconscionable, but Del. Sup. Court sided with lower court, meekly hiding behind minimal indicia.

3. In Davenport (understandably cited by Smack), the Del. Supreme Ct., even stated on record that the lower court was wrong in determining length of sentence -- NEVERTHELESS, the Supreme Ct. still leaned on the minimal factor.

There are more inconsistencies in the two cases on part of State courts and prosecutors. Beyond a doubt, due process was violated at sentencing in both cases. Beyond a doubt, Del. Sentencing Rule 1101 is Unconstitutional. Beyond a doubt, the conditions must be rectified - for Smack, Davenport, and for any subsequent cases. Minimal Indicia of Reliability falls short of being just, compared to considering a preponderance of evidence - whether in determining guilt OR length of sentence.

"He that rules over men must be just, ruling in the fear of God"
Holy Bible, 2 Samuel 23:3
Sentencing Rule 1101 of State of Delaware unjustly violates "due process".

Posted by: Tim Jensen | Jun 12, 2021 2:39:12 PM

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