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NCJRS Abstract

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NCJ Number: 136371 Find in a Library
Title: Looking at the Law: Fact-Finding in Sentencing
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
Page Count: 15
Sponsoring Agency: National Institute of Justice/
Rockville, MD 20849
NCJRS Photocopy Services
Rockville, MD 20849-6000
Sale Source: National Institute of Justice/
NCJRS paper reproduction
Box 6000, Dept F
Rockville, MD 20849
United States of America

NCJRS Photocopy Services
Box 6000
Rockville, MD 20849-6000
United States of America
Document: PDF
Type: Legislation/Policy Analysis
Format: Article
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
Main Term(s): Sentencing guidelines
Index Term(s): Appeal procedures; Presentence investigations; Rules of evidence; Sentencing reform
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