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77 Iowa L. Rev. 1803 (1991-1992)
Due Process Comes Due: An Argument for the Clear and Convincing Evidentiary Standard in Sentencing Hearings

handle is hein.journals/ilr77 and id is 1869 raw text is: Due Process Comes Due: An Argument for the Clear and Convincing Evidentiary Standard in Sentencing Hearings Scott M. Brennan* Throughout the history of the United States, judges have interpreted the Due Process Clause of the Fourteenth Amendment1 to require that the government meet a high burden of proof2 in criminal cases.3 Notwithstand- ing this, the United States Supreme Court did not hold due process protections applicable in sentencing proceedings until it considered Townsend v. Burke4 in 1948. In Townsend, the Court held a judge's use of potentially inaccurate information at a sentencing hearing in order to enhance a defendant's sentence violated the defendant's due process rights.5 Since Townsend, many defendants have raised due process defenses in the context of sentencing hearings; however, such defenses have rarely been successful.6 *Laiv Student, University of Iowa. 1. The Due Process Clause mandates: All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. U.S. Const. amend. XIV, § 1. 2. Standard of proof is defined as [tihe burden of proof required in a particular type of case. Black's Law Dictionary 1405 (6th ed. 1990). 3. In re Winship, 397 U.S. 358, 361 (1969) (citing Charles T. McCormick, Evidence § 321, at 681-82 (1st ed. 1954)). The Winship Court expressly held that the Due Process Clause protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged. Winship, 397 U.S. at 364. See also 9 James Wigmore, Evidence § 2497 (3d ed. 1940); Black's Law Dictionary, supra note 2, at 1405 (stating that the standard of proof in a criminal case is beyond a reasonable doubt). 4. 334 U.S. 736 (1948). 5. Id. at 739-40. 6. United States v. Murphy, 899 F.2d 714, 716-17 (8th Cir. 1990) (holding that due process does not require any specific standard of proof for a factual determination at a sentencing hearing); United States v. Gooden, 892 F.2d 725, 728 (8th Cir. 1989) (holding due process satisfied where the district court used the preponderance of the evidence standard); United States v. McDowell, 888 F.2d 285, 291 (3d Cir. 1989) (holding no violation of due process where the preponderance of the evidence standard is used to increase the sentence); United States v. Lee, 818 F.2d 1052, 1055 (2d Cir. 1987) (holding no violation of due process exists where evidence considered in a sentencing hearing was not established by clear and convincing evidence or beyond a reasonable doubt). 1803

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