No Bill of Attainder or ex post facto Law shall be passed.
--U.S. Constitution, Article I, sec. 9, cl. 3
Let's be clear: Marvin Peugh is a bad man, and no one questions that he engaged in a pair of financial schemes in 1999-2000 which led to his conviction on several counts of bank fraud and sentencing in March 2010. That much is not in dispute.
This is: The federal sentencing guidelines which were in effect at the time he committed the crime would have yielded a recommended sentence of 30-37 months; after their amendment in 2009, the recommended sentence for the same acts was 70-87 months. Peugh's lawyers insisted the Ex Post Facto clause should yield a sentence under the old guidelines; instead, the Hon. Frederick J. Kapala of the Northern District of Illinois sentenced him to 70 months, plus three years' supervised release joint and several liability for restitution (with his partner, also convicted) in the amount of $1,967,055.30. He appealed, lost before the United States Court of Appeals for the Seventh Circuit, and appealed again to the Supremes.
And, so, after entertaining oral argument, a 5-4 decision of the Court written by Justice Sotomayor has reversed Peugh's sentence on account of the Ex Post Facto clause, and remanded for his resentencing, potentially saving him 2 1/2 - 3 1/2 years of jail time. Justice Kennedy supplied the fifth vote, Justice Thomas supplies yet another I'm More Originalist Than You marker, and I'll supply a healthy amount of explanation below the orange gnocchi.
First, this reminder: The Federal Sentencing Guidelines are, at this point in the law, only guidelines. Post-Apprendi and Booker, a federal district court judge must use the guidelines as a starting point, but is free to depart from them (in either direction) based on stated reasons so long as it is deemed a reasonable use of the judge's discretion.
Justice Sotomayor's decision starts with Calder v Bull, a 1798 decision of the Court, which held that the Ex Post Facto clause applies to:
“1st. Every law that makes an action done before the passing of the law, and which was innocent when done, criminal; and punishes such action. 2d. Every law that aggravates a crime, or makes it greater than it was, when committed. 3d. Every law that changes the punishment, and inflicts a greater punishment, than the law annexed to the crime, when committed. 4th. Every law that alters the legal rules of evidence, and receives less, or different, testimony, than the law required at the time of the commission of the offence, in order to convict the offender.”
And so, Justice Sotomayor argues, the guidelines are binding enough so as to effectively change the sentencing rules midstream:
That a district court may ultimately sentence a given defendant outside the Guidelines range does not deprive the Guidelines of force as the framework for sentencing. Indeed, the rule that an incorrect Guidelines calculation is procedural error ensures that they remain the starting point for every sentencing calculation in the federal system....
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.
To which the dissenters (led by Justice Thomas) argue, no, wait, a guideline is not a "law":
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 §3553(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.
To which Justice Sotomayor and the majority responds:
The Government does not challenge these holdings but rather argues, in essence, that the Guidelines are too much like guideposts and not enough like fences to give rise to an ex post facto violation....
On the Government’s account, the Guidelines are just one among many persuasive sources a sentencing court can consult, no different from a “policy paper.” The Government’s argument fails to acknowledge, however, that district courts are not required to consult any policy paper in order to avoid reversible procedural error; nor must they “consider the extent of [their] deviation” from a given policy paper and “ensure that the justification is sufficiently compelling to support the degree of the variance." Courts of appeals, in turn, are not permitted to presume that a sentence that comports with a particular policy paper is reasonable; nor do courts of appeals, in considering whether the district court’s sentence was reasonable, weigh the extent of any departure from a given policy paper in determining whether the district court abused its discretion. It is simply not the case that the Sentencing Guidelines are merely a volume that the district court reads with academic interest in the course of sentencing….
District courts must begin their sentencing analysis with the Guidelines in effect at the time of the offense and use them to calculate the sentencing range correctly; and those Guidelines will anchor both the district court’s discretion and the appellate review process in all of the ways we have described. The newer Guidelines, meanwhile, will have the status of one of many reasons a district court might give for deviating from the older Guidelines, a status that is simply not equivalent for ex post facto purposes.
The arguments put forward by the Government and the dissent cannot unseat the conclusion that Peugh’s case falls within Calder’s third category of ex post facto violations. “[T]he Ex Post Facto Clause forbids the [government] to enhance the measure of punishment by altering the substantive ‘formula’ used to calculate the applicable sentencing range.” Morales, 514 U. S., at 505. That is precisely what the amended Guidelines did here.
Oh,
snap. Justice Thomas
wrote the
Morales decision.
So that's that. Almost. Because I need to flag one more instance, where, yet again, Justice Thomas flies solo, going much further into originalist precedent-destroying than any of his conservative colleagues. See, Justice Thomas would have also held that "nothing in the text or history of the Ex Post Facto Clause suggests that it should hinge on the expectations that prisoners and defendants have about how many days they will spend in prison," and hold that so long as the longer sentence was possible under the earlier sentencing regime, it would not violate the Ex Post Facto clause to impose it on the defendant. Everyone who's been interpreting Calder in the subsequent 200+ years, Justice Thomas believes, has been doing it wrong (even though he, himself, did the same thing in Morales in 1995):
Retroactive laws that merely create a risk that a defendant will receive a higher sentence, however, do not implicate traditional ex post facto concerns. An individual contemplating the commission of a given offense knows he may be sentenced anywhere within the legally prescribed range. He may hope to receive a lenient sentence, and he may even have good reasons for expecting leniency. But he does not have any guarantees. See Garner, 529 U. S., at 258 (SCALIA, J., concurring in part in judgment) (“Discretion to be compassionate or harsh is inherent in the sentencing scheme, and being denied compassion is one of the risks that the offender knowingly assumes”). The law provides the defendant with only one assurance: He will be sentenced within the range affixed to his offense by statute. Legal changes that alter the likelihood of a particular sentence within the legally prescribed range do not deprive people of notice and fair warning, or implicate the concerns about tyranny that animated the adoption of the Ex Post Facto Clause.
As to his undermining
his own decision in
Morales, Justice Thomas sheepishly drops a footnote:
As the author of Morales, failure to apply the original meaning was an error to which I succumbed.
Again: Only Thomas went there. (He also clearly loses points for the wussy use of the passive voice. How about "As the author of
Morales, I erred in failing to apply original meaning"?)
Indeed, Justices Alito and Scalia issued a separate dissent just to make clear to everyone that they wouldn't (yet). In its entirety, it reads:
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.
So Peugh goes to jail (for less time, probably), and Justice Thomas goes his own way. Again.