On Monday a closely divided
Supreme Court issued another important criminal law decision on 5-4 lines. This
time the Court held that the Constitution is violated when courts rely on
current federal sentencing guidelines if those current guidelines call for
harsher punishment than the ones in place at the time the offense was
The issue before the Court was
whether the current federal sentencing guidelines, which are technically discretionary,
carry enough weight--regardless of not being mandatory--to subject defendants to
the risk of additional punishment. If so, this would violate the ex post facto clause in the
Constitution which prohibits enhanced retroactive punishment.
The case before the Court, Peugh
concerned a man who was convicted of bank fraud. By the time he was sentenced in 2010, the trial judge noted that the guidelines
that were currently in place suggested a sentencing range of between 70 and 87
months, the judge chose 70. The problem is that at the time the crimes were
committed, the sentencing range under the guidelines was only 30 to 37 months. The change exposed the defendant to a potentially increased punishment.
Justice Sotomayor noted that the
low end of the 2009 sentencing guidelines was still 33 months higher than the
highest number contained in the 1998 guidelines. Sotomayor said that the
guidelines are still seen as influential despite no longer being mandatory. The
guidelines act as a starting point and judges often have to go to extreme
lengths to justify any departure from the guidelines, something that acts to
dissuade such sentencing departures. Four fifths of all sentences given in federal court are within the guideline range.
Given this, Sotomayor said that
the ex post facto clause of the Constitution was violated in Peugh’s case
because the new sentencing laws created a risk of additional retroactive
The dissent in the case disagreed and Justice Thomas wrote that because the new
guidelines have been called advisory and not mandatory, they cannot possible
constrain the discretion of a district court. Thomas said that, as a result,
there could be no violation of the ex post facto clause.
To read the full opinion, click here.