Requiring proof beyond a reasonable doubt in any legislative fix

In this prior post, I highlighted an argument by Steve Sady here that, after Booker, beyond a reasonable doubt (and not preponderance of the evidence) should be the applicable standard of proof for disputed facts at federal sentencing.  Though it is debatable whether beyond a reasonable doubt must be the applicable standard under existing law, another subject worthy of debate is whether Congress ought to legislatively define beyond a reasonable doubt as the applicable proof standard in any legislative fix to Booker making the federal guidelines mandatory again.

As discussed last November in a post on the brewing battle over the Bowman fix and as further suggested by recent comments from prosecutors (discussed here), the Justice Department seems to view the so-called Bowman fix (aka “topless guidelines”) as the best legislative response to Booker.  (Background on the Bowman fix can be found here and here.)  As I have noted before, DOJ support for the Bowman fix would connote not only that DOJ wants mandatory guidelines, but also that it wants to avoid being required to prove aggravating facts to a jury beyond a reasonable doubt.

Because of the administrative challenges of pleading and proving to a jury all aggravating “guideline facts,” it is not surprising that DOJ apparently does not support Blakely-izing the guidelines.  Moreover, because having to prove certain facts to a jury could prove prejudicial to defendants in some settings, there are perhaps conceptual justifications for not requiring all aggravating facts to go before a jury.  (I develop some of these ideas through the offense/offender distinction in my Conceptualizing Blakely article).

However, I do not see a strong conceptual justification for allowing aggravating guideline facts which mandate longer sentences to be proven only by a preponderance of the evidence rather than beyond a reasonable doubt.  Though Watts and Harris (assuming they are still good precedent) suggest the Constitution may allow a preponderance proof standard, applying this civil law standard to facts which mandate increased criminal penalties never seemed quite right to me as a matter of policy. 

Consequently, if the Bowman fix or some other proposed legislative response to Booker seeks to make the guidelines mandatory and also seeks to circumvent juries, I would advocate that the applicable burden of proof for aggravating factors still be beyond a reasonable doubt and not merely preponderance of the evidence.  Though a lesser burden of proof may be constitutionally permissible, it does not seem fair or just when fact-finding will have defined (and potentially severe) criminal punishment consequences.