NCJ Number
147639
Journal
St. John's Law Review Volume: 67 Issue: 3 Dated: (Summer 1993) Pages: 639-653
Date Published
1993
Length
15 pages
Annotation
The standard of proof and the Federal Sentencing Guidelines are discussed.
Abstract
One provision of the Federal Sentencing Guidelines (Guidelines) that continues to be controversial is section 1B1.3, the "Relevant Conduct Provision," also known as the "Cornerstone of the Guidelines." This provision allows the government, at a presentencing hearing, to present evidence of the convicted defendant's prior criminal activity, including uncharged criminal activity that relates to the offense of conviction. The Guidelines do not specify the standard of proof to be applied at the presentencing hearing. This note suggests a resolution to the disagreement regarding the standard of proof. The author analyzes the various circuit court opinions dealing with this issue, discusses the effect of a reduced liberty interest on due process considerations, and distinguishes U.S. Supreme Court precedent which stands for the proposition that due process requires utilization of the clear and convincing standard of proof. He briefly examines balancing societal interests against the interests of convicted criminals. Finally, by analyzing the Court's decision in McMillan v. Pennsylvania, 477 U.S. 79 (1988), the author concludes that the preponderance standard is constitutionally sufficient. Footnotes