Ex Post Facto Applies to the Advisory Guidelines

Today the U.S. Supreme Court decided Peugh v. United States (http://www.supremecourt.gov/opinions/12pdf/12-62_5g68.pdf).  At issue was whether the Ex Post Facto clause still applied to the U.S. Sentencing Guidelines after they became “effectively advisory” back in 2005 in United States v. Booker.  In Peugh, the defendant was found guilty of bank fraud after a trial.  He argued at sentencing that the 1998 version of the guidelines applied, which set a range of 30-37 months.  The government argued, and the district court and Seventh Circuit, however, held that the 2009 version of the guidelines applied, which yielded a range of 70-87 months.  He was sentenced to 70 months.

Justice Sotomayor (who had a great interview on last night’s 60 Minutes), writing for the 5-4 majority, resorted, interestingly enough, to empirical studies on the effect the guidelines have on judges when imposing sentences for justifying the holding: “Peugh points to considerable empirical evidence indicat­ing that the Sentencing Guidelines have the intended effect of influencing the sentences imposed by judges. Even after Booker rendered the Sentencing Guidelines advisory, district courts have in the vast majority of cases imposed either within-Guidelines sentences or sentences that depart downward from the Guidelines on the Gov­ernment’s motion. In less than one-fifth of cases since 2007 have district courts imposed above- or below-Guidelines sentences absent a Government motion    Moreover, the Sen­tencing Commission’s data indicate that when a Guide­lines range moves up or down, offenders’ sentences move with it. 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.” Id. at 12-13 (citations omitted).

Thus, it ultimately appears that what some call the psychological “anchoring effect” supported the Court’s holding–that ex post facto still applies even to “advisory” guidelines.  But this then begs the question as to how advisory the guidelines truly are.  While ostensibly “purely advisory,” it appears that both legally and psychologically there are limits to the advisory nature of the guidelines.  Legally because of the applicability of ex post facto; psychologically as reflected by empirical evidence.  But when courts sentence more often outside the guideline range than within—as in child pornography possession cases and nearly so in fraud cases—perhaps this empirical factor eviscerates the advisory nature of that guideline altogether in the sense that the guideline provides no advice at all.

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