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Once More, Dear Friends, Into the Ex Post Facto Thicket

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The US Supreme Court today decided, 5-4, that an amendment to the Federal Sentencing Guidelines that increases the guideline range for a crime cannot be applied to a crime committed prior to the amendment.  Such application would violate the Ex Post Facto Clause of Article I, Section 9.  (The same holding would apply to states under the parallel Article I, Section 10 clause.)  The case is Peugh v. United States, No. 12-62.

The federal system adopts procedural measures intended to make the Guidelines the lodestone of sentencing. A retrospective increase in the Guidelines range applicable to a defendant creates a sufficient risk of a higher sentence to constitute an ex post facto violation.
Justice Kennedy did not join part III C of Justice Sotomayor's opinion, making that part a plurality opinion.  That part concludes, "But, contrary to the dissent's view, see post, at 11-13, the Ex Post Facto Clause does not merely protect reliance interests. It also reflects principles of 'fundamental justice.' "

What makes this case close is that the Sentencing Guidelines were transformed from mandatory to advisory in the Booker case.  Justice Thomas notes in the dissent (joined by Chief Justice Roberts and Justices Scalia and Alito):

First, the Guidelines do not constrain the discretion of district courts and, thus, have no legal effect on a defendant's sentence. Second, to the extent that the amended Guidelines create a risk that a defendant might receive a harsher punishment, that risk results from the Guidelines' persuasive force, not any legal effect. The Guidelines help district judges to impose sentences that comply with ยง3553(a). The risk of an increased sentence is, in essence, the risk of a more accurate sentence--i.e., a sentence more in line with the statutory scheme's penological goals. Guideline changes that help district courts achieve such pre-existing statutory sentencing goals do not create a risk of an increased sentence cognizable under the Ex Post Facto Clause. We have never held that government action violates the Ex Post Facto Clause when it merely influences the exercise of the sentencing judge's discretion.
Justice Thomas, writing only for himself, thinks the "sufficient risk" test should be scrapped in favor of a return to the original understanding.  Justice Alito, joined by Justice Scalia, writes:

I agree with Justice Thomas that retroactive application of amended advisory Guidelines does not violate the Ex Post Facto Clause under our "sufficient risk" test. See California Dept. of Corrections v. Morales, 514 U. S. 499, 509 (1995). I do not have occasion in this case to reconsider that test's merits or its relation to the original understanding of the Clause.
Last month, I noted that the jurisprudence in a related area was "less than crystal clear."  This case involves a different frontier of fuzz.  How much influence on a judge's sentencing decision is too much, triggering the ex post facto prohibition?  It will take more cases to find out.

The other two decisions today were civil, involving arbitrators and raisins.  Check back Thursday for more decisions.

1 Comment

This case is easily explicable. Kennedy will twist the rules for a lower sentence and seems to relish his role as the Justice who will reduce incarcerations by hook or crook. And the Gang of Four, well, not much needs to be said about that.

It isn't law anymore.

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