SCOTUS rules federal sentencing guidelines change after commission of crime to be Ex Post Facto violation

June 12, 2013

Security guards walk the steps of the Supreme Court before Justice Elena Kagan's investiture ceremony in WashingtonAs with the ruling which was subject of last week’s post, Justice Kennedy is the swing vote in this week’s post on Peugh v. U.S., decided on Monday.

The ruling deals with federal sentencing guidelines and the Constitution’s Ex Post Facto Clause.

Although that subject matter sounds painfully academic, Peugh is actually a very significant decision that will have an immediate and long-lasting impact in criminal sentencing proceedings.

The facts of the case begin with the conviction of Marvin Peugh for bank fraud for conduct that occurred in 1999 and 2000.

Peugh’s sentencing wasn’t until May of 2010, however.  At that point, there was a new version of the Federal Sentencing Guidelines in effect since 2009, under which Peugh’s conduct was punishable by imprisonment in a range of 70 to 87 months.

Under the 1998 version of the guidelines in effect at the time of Peugh’s conduct leading to his conviction, the sentencing range was only 30 to 37 months.

The sentencing judge used the 2009 version of the guidelines and sentenced Peugh to 70 months imprisonment.

Peugh claimed that this sentence violated the Constitution’s Ex Post Facto Clause, which prohibits ex post facto laws.

Although ex post facto laws are not defined by the Constitution, case law has laid out the “established meaning at the time of the [Constitution’s] framing.”

The full list of definitions can be found in 1798’s Caldur v. Bull, but the individual definition relevant for our purposes characterizes an ex post facto law as any “law that changes the punishment, and inflicts a greater punishment, than the law annexed to the crime, when committed.”

It would seem obvious, then, that a change to the Federal Sentencing Guidelines that doubles the punishment since Peugh’s crime was committed would incontestably be considered an ex post facto law.

If that were true, however, the appeals court wouldn’t have ruled against Peugh, and Justice Kennedy wouldn’t have been the swing vote in another five to four decision.

The primary reason that this case was such a close call is 2005’s U.S. v. BookerBooker held that the requirement forcing federal judges to impose a sentence within the Federal Guidelines range to be unconstitutional.

So if these Sentencing Guidelines are just that – guidelines – is it really an ex post facto change?

According to the Peugh dissent, certainly not. 

To the dissent, authored by Justice Thomas and joined by Chief Justice Roberts and Justices Scalia and Alito, the reasons for this are twofold:

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 majority conceded that the Guidelines set forth an advisory sentencing range for each defendant convicted in federal court.

There were, however, numerous other factors noted by the majority to help it reach the opposite conclusion as the dissent: that the use of the 2009 Sentencing Guidelines were, in fact, an unconstitutional ex post facto law.

The majority observed that, although the guidelines are no longer mandatory, there are enough incentives in place to strongly encourage sentencing judges to comply with the guidelines.

A 2007 Supreme Court decision requires a sentencing court to start “by correctly calculating the applicable Guidelines range” before considering the facts of the defendant’s individual case.  If the sentencing court wishes to deviate from the Guidelines, it must explain the basis for doing so on the record.

Sentencing rulings are appealed for reasonableness under an abuse-of-discretion standard, and appeals courts may (not must) presume a sentence within the Guidelines to be reasonable.  Appeals courts also consider the extent of any deviation from the guidelines as part of their reasonableness review.

The majority additionally noted that “the sentencing regime also puts in place procedural hurdles that, in practice, make imposition of a non-Guidelines sentence less likely.”

Finally, the majority pointed to “considerable empirical evidence” that indicates the Guidelines generally “steer district courts to more within-Guidelines sentences.”

Thus, because the majority found that the change in Guidelines presented a “sufficient risk of increasing the measure of punishment attached to the covered crimes,” the use of the 2009 guidelines violated the Constitution’s Ex Post Facto Clause.

As stated at the beginning of this article, this is a significant ruling.  Now, sentencing guidelines from the date of the offense must be employed, regardless of whether newer guidelines are in place and regardless of whether the guidelines are mandatory.  In the vast majority of cases, this will mean that the defendant will receive a lesser sentence.

Although he didn’t write the majority opinion, Justice Kennedy once again proves to be the swing vote in this landmark decision.