Imagine you’re in a negotiation to buy a used car. You use the Blue Book — the Kelley Blue Book, not the legal Bluebook — to set the starting point on the price. You do your research at home based on the blue book that’s online, which says the starting point for the car you want is $10,000.

Then, when you get to the used car dealer, you find out that they have a new blue book, one that just came out that day. It says that the starting point for the car you want is really $12,000.

You’d probably be annoyed, maybe angry. The whole starting point for your conversation about the price of the car changed.

Yet, the dealer could tell you, and you could still agree with him to pay any amount you’d like for the car. The starting point doesn’t necessarily set the ending point.

This was, basically, the situation the Supreme Court was called in to referee in this morning’s oral argument in Peugh v. United States….

The Only Thing Constant Is Change (in the sentencing guidelines)

It used to be, back in the olden days before 2005, that any person sentenced in a federal criminal case was sentenced based on the United States Sentencing Guidelines. Then, in Booker, the Supreme Court held that the guidelines aren’t binding – district court judges are required to calculate the guidelines, look at them as a starting point, and then impose just about any sentence they want.

As long as they provide good enough reasons for giving it. And a sentence within the sentencing guidelines is normally presumed to be an okay sentence; it’s when a district court judge goes outside of the sentencing guidelines that the judge has to do a lot of work to explain the sentence.

Of course, the sentencing guidelines change from time to time. The U.S. Sentencing Commission has a whole staff of people who constantly refine the guidelines to make then either better or to respond to Congress when it, in turn, responds to recent public events (like Enron or the need to get reelected by beating up on, say, child pornographers).

It used to be, back in the day, that if the sentencing guidelines got worse after a defendant committed a crime, a judge should use the guidelines that were in place when the crime was committed rather than when the person was sentenced.

To do otherwise would violate the ex post facto clause — our Constitution doesn’t let the law get worse for folks after they commit a crime. If you murder your wife when there’s no death penalty, the state can’t later change the law to make you death-eligible. You have a reliance interest in not facing death on that.

Today, though, the Court heard arguments on whether the ex post facto clause still applies now that the guidelines aren’t binding.

It’s an odd thing. On the one hand, the guidelines are the starting point for the conversation with the district court about what the sentence should be. So even if they aren’t binding, everyone is going to be very interested in what they are.

Yet, on the other hand, they aren’t the end of the game. The judge can still do whatever she wants.

It’s clear, as Justice Scalia pointed out, that there’s no ex post facto problem if a person’s case gets reassigned to a judge who gives long sentences – “Maximum Jones” as Scalia talked about him.

The Chief Justice asked counsel for Peugh whether it would be an ex post facto violation if a judge just looked at other judge’s sentencing decisions and decided that she should start giving longer sentences.

The sense in the room was that the right answer is “no.”

Justice Alito was worried that there are some districts where everyone gives a sentence below the bottom of the guidelines. In the Eastern District of New York, he suggested, only 30 percent of the sentences are inside the guidelines range.

Justice Sotomayor asked if he thought that was a change. Alito explained that when he was on the Court of Appeals, he thought his job was to make sure district court judges followed the sentencing reform act, but that he wasn’t sure that was the approach by another court “across the river.”

Sotomayor answered that it wasn’t.

Good times.

The State of Maryland Wants Your DNA (if you’ve been arrested for a crime)

The other case argued today was Maryland v. King.

In Maryland, if you’ve been arrested for a “serious crime,” the state can take your DNA. This case asks the Court to consider whether that’s okay.

Justice Alito called this “the most important criminal justice case in decades.” I suspect that’s because he thinks the Court is going to say it’s okay to take people’s DNA, and that will be a huge benefit for law enforcement and people who like to think of their DNA in a government database.

Others seemed perhaps troubled by the government taking our DNA.

The Chief Justice asked if the state could take DNA at every traffic stop.

Justice Kagan wanted to know if the state could require a DNA sample when you try to get a driver’s license.

Justice Ginsburg asked if the state could take DNA at a Terry stop.

This is the kind of question that can only credibly answered one way. I sort of love the way the Justices do that. The Chief does it particularly well. There is only one answer you can give, yet the Justices seem to ask in such a way that they’re just curious to see if you’re able to realize that.

The attorney for Maryland didn’t appear to pass that test. I imagined her mind starting to run with fantasies about what a boost to law enforcement it would be to take DNA from anyone in a Terry stop.

She answered Justice Ginsburg that she just didn’t know how the Court would decide a DNA-from-Terry-stop question in the same kind of voice that one uses to say that who knows what would happen if everyone has another round of crantinis.

Justice Kennedy helpfully pointed out that the Court is not likely to go there.

But, for those of you unaware, apparently we’re about two years away from law enforcement being able to swipe your cheek and instantly compare you to a database of DNA that’s been collected from crime scenes.

Perhaps Justice Alito is right.


Matt Kaiser is a lawyer at The Kaiser Law Firm PLLC, which handles complex civil litigation, white collar investigations, and federal criminal cases. On his blog, The Federal Criminal Appeals Blog, he writes about published opinions in criminal cases in the federal circuits where the defendant wins. You can reach him by email at mattkaiser@thekaiserlawfirm, and you can follow him on Twitter: @mattkaiser.


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