Article:
Ronald Jay Allen, Mullaney v. Wilbur, The Supreme Court, and the Substantive Criminal Law—An Examination of the Limits of Legitimate Intervention, 55 TEXAS L. REV. 269 (1976).
 

Abstract:
The Supreme Court decision in Mullaney v. Wilbur, 421 U.S. 684 (1975), relied on In re Winship, 397 U.S. 358 (1970), to hold that the Maine homicide scheme, which placed the burden of proving provocation on a defendant, violated Winship’s requirement that the State prove beyond a reasonable doubt every fact necessary to constitute the crime. Professor Allen argues that the interests supporting Winship’s application of the beyond-a-reasonable-doubt standard—community confidence in the criminal law and a defendant’s interest in avoiding stigmatization and the deprivation of liberty—do not compel the same result in Wilbur. Instead, Professor Allen urges that the constraints of federalism allow a state to structure the burden of proof on any particular mitigating fact in any manner it desires so long as the punishment is proportional to the crime regardless of the presence or absence of that fact.