Looking at the Law: Fact-Finding in Sentencing

• NCJ Number: 136371
• Journal: Federal Probation Volume: 55 Issue: 4 Dated: (December 1991) Pages: 58-72
• Author(s): D N Adair Jr; T D Slawsky
• Date Published: 1991
• Length: 15 pages
• Sale Source: National Institute of Justice/; NCJRS Photocopy Services
• Publication Format: Article
• Publication Type: Legislation/Policy Analysis
• Language: English
• Country: United States of America

Annotation

This article describes case law that relates to fact-finding under Federal sentencing guidelines; the focus is on the role of the presentence report, the burden of persuasion in challenging the presentence report, the role of negotiated stipulations, and the quality of evidence and standard of proof required to establish guideline-relevant facts.

Abstract

The review of case law suggests that, while courts of appeal have determined that fact-finding rules developed prior to sentencing guidelines are constitutionally valid, a number of decisions indicate discomfort with the use of those standards. The authors contend that the central goals of sentencing reform cannot be fully accomplished using old evidentiary standards. Several courts of appeal have expressed their discomfort in using sentencing procedures developed under a now rejected system that stresses the need for flexibility in devising sentences that were individualized to rehabilitate the offender and protect society. While courts of appeal have held that these procedures are constitutional as applied to guideline sentencing, it does not necessarily follow that the reasons supporting their use apply to a new system that establishes penalties not primarily for rehabilitation, but rather for the combined purposes of punishment, deterrence, public protection, and correctional treatment. Underlying the reasoning for continued use of pre-guideline fact-finding procedures has been the well-justified concern that more formalized fact-finding may result in a greatly increased workload for every criminal justice system entity. Workload aside, the concern expressed by some courts about using fact-finding procedures developed for a repudiated sentencing system is well-founded. Serious consideration should be given not only to the fairness of such procedures, but also to whether the continued use of these procedures significantly compromises the realization of new sentencing objectives. 38 footnotes