Constitutional Law, Crime, Elena Kagan, SCOTUS, Sentencing Law, Supreme Court

Does the Ex Post Facto Clause Apply To Suggestions?

It used to be, back before 2005, that the federal sentencing guidelines were mandatory. If you were going to be checking into the United States Bureau of Prisons, the sentencing guidelines determined how long your reservation would be for.

And, it used to be, that if you committed a federal crime, and, between when you committed the crime and were sentenced, the sentencing guidelines went up, the judge had to apply the lower sentencing guidelines from when you committed the crime.

To do otherwise would violate the Ex Post Facto clause.

The sentencing guidelines changed, though, with Booker. Now they aren’t mandatory – they’re just something important that a federal judge has to look at and a federal judge may be risking reversal if she doesn’t follow them.

Got that? The guidelines are totally discretionary. But for the appellate review. Also most federal judges follow the guidelines almost every time. But that’s just a coincidence.

So, since the guidelines are no longer mandatory, but, rather, now just followed in the vast majority of cases, what happens to the Ex Post Facto clause?

If, like the defendant yesterday’s Supreme Court opinion in Peugh v. United States, you commit a crime when the sentencing guidelines call for a range of 30-37 months, but go to sentencing when the range is 70-87 months, which guidelines range should a federal district court use?

As it turns out, this is kind of a thorny question. Suppose you’re a person who represents people charged in federal court with crimes (like, say, me). In general, you want the sentencing guidelines to be less mandatory. You’d like them to be mere suggestions – little more than whispers of a hint of a possible way to approach sentencing.

This is because the sentencing guidelines are, in general, really bad for people accused of crimes. The sentences called for by the guidelines very rarely go down and have been around long enough to go up a decent amount. So, in addition to wanting to have the guidelines be as far from binding as possible, you’d probably also want to use the oldest version of the guidelines possible – like Marvin Peugh, you’d like to have the 30-37 month range, rather than the 70-87 month range.

Yet, of course, the Ex Post Facto clause really only applies to things that are pretty darn mandatory. Which is not how you really want the Supreme Court to think about the sentencing guidelines which are, you hope, little more than vapors in the air surrounding the sentencing judge, which can be waved away with effective sentencing advocacy.

All of this is to say that if you are someone who cares about federal criminal sentencing, and the people who get sentenced, you’ve likely been sweating the Supreme Court’s opinion in Peugh. You’d really rather use older guidelines ranges, but you’re also a little worried that this will be an occasion to walk back all that watering down of the mandatory guidelines.

And, if that’s your concern, then worry no longer, gentle reader. Justice Kagan delivered an opinion that is as gentle to your conception of the sentencing guidelines as the masseuse in the imagined white-collar women’s prison in the Fourth Season of Arrested Development.

Kagan’s majority opinion explains as follows (internal citations omitted):

The Court held that applying ex post facto protection to a law that serves as the basis for a sentence goes to the concern the founders had that animated the Ex Post Facto Clause:

The Framers considered ex post facto laws to be “contrary to the first principles of the social compact and to every principle of sound legislation.” The Federalist No. 44, p. 282 (C. Rossiter ed. 1961) (J. Madison). The Clause ensures that individuals have fair warning of applicable laws and guards against vindictive legislative action.

It’s close to saying that if you rob a bank because the guidelines call for a sentence you think you can handle, but then the Sentencing Commission jacks up the guidelines on you, you have a reliance interest that the Constitution protects.

Except that it’s not. As the majority explains,

It is true that we held, in Irizarry v. United States, 553 U. S. 708, that a defendant does not have an “expectation subject to due process protection” that he will be sentenced within the Guidelines range. But, contrary to the dissent’s view, the Ex Post Facto Clause does not merely protect reliance interests. It also reflects principles of “fundamental justice.”

So, regardless of whether there’s a reliance interest, the Ex Post Facto clause does apply to whatever thin guidance the guidelines provide.


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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