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1997 U. Ill. L. Rev. 583 (1997)
The Standard of Proof at Sentencing Hearings under the Federal Sentencing Guidelines: Why the Preponderance of the Evidence Standard Is Constitutionally Inadequate

handle is hein.journals/unilllr1997 and id is 595 raw text is: THE STANDARD OF PROOF AT SENTENCING HEARINGS
In 1984 Congress, responding to public dissatisfaction with the
perceived arbitrariness of existing sentencing schemes, vested in the
US. Sentencing Commission the authority to devise stringent fed-
eral sentencing guidelines. As part of the effort to divest federal
judges of discretion in sentencing, the Sentencing Guidelines cre-
ated a bifurcated system of fact-finding that allows a prosecutor to
allege and the judge to find certain facts at the sentencing phase of
a criminal prosecution. If these facts constitute relevant conduct
or aggravating circumstances as defined by the Sentencing
Guidelines, the presiding judge may depart upwards from the sen-
tencing range prescribed by the guidelines. Perhaps more impor-
tantly, proof of these collateral facts by a mere preponderance of
the evidence is sufficient to warrant departure.
In this note, the author challenges the constitutionality of ap-
plying the preponderance standard to the sentencing phase of a
criminal proceeding. Arguing that the Sentencing Guidelines im-
permissibly evade due process requirements by reclassifying ele-
ments of charged offenses as sentencing factors, the author
recommends a return to the beyond a reasonable doubt standard
for proof of sentencing factors that are, in actuality, uncharged of-
fenses or elements of the underlying offense. Additionally, for
traditional sentencing factors that are in fact collateral, the author
advocates use of the clear and convincing evidentiary standard.
On June 15, 1995, the eighteen-year mystery surrounding the dis-
appearance and presumed murder of candy heiress Helen Vorhees
Brach was finally resolved when a federal district judge sentenced
Richard Bailey to thirty years in prison.' Bailey had pleaded guilty to
racketeering charges for fleecing a series of rich women in worthless
horse deals, but he denied defrauding Brach or participating in her
1. See Matt O'Connor, Bailey Gets 30 Years, But in Effect, It's Life, Cn. TRm., June 16,
1995, § 2, at 1.

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