Will criminal sentencing ruling trickle down to state?

By Sylvia Hsieh
The Daily Record Newswire
Lawyers are debating whether the recent U.S. Supreme Court ruling that reversed the sentencing of a defendant because it constituted ex post facto punishment will trickle into other areas of criminal sentencing such as parole, three strikes laws and sex offender registration laws.

The court held in a 5-4 decision that sentencing a criminal defendant under later guidelines that provide for a higher sentence than those in effect at the time he committed his crimes violates the Ex Post Facto Clause.

According to Stephen B. Kinnaird, who represented the defendant, the U.S. Sentencing Commission routinely revises sentencing guidelines and recommends harsher sentencing for certain crimes, including fraud and sex crimes.

“Now, the Ex Post Facto Clause will apply and will require courts to use the guidelines in effect at the time of the offense,” said Kinnaird, a partner in the Washington office of Paul Hastings.

The ruling may be used to challenge other areas of prison administration in which increased punishment is discretionary.

“Sentencing laws are often changing. It can have lots of echo effects,” said Douglas A. Berman, a law professor at Ohio State University Moritz College of Law and co-author of a casebook on sentencing law and policy.

But Scott Burns, executive director of the National District Attorneys Association, said the ruling is restricted to the federal system, which is responsible for only 3 percent of criminal prosecutions in the country and will have little influence on the states, which handle the other 97 percent.

The defendant, Marvin Peugh, was convicted by a federal jury of five counts of bank fraud — including check kiting.

He committed the crimes in 1999 and 2000, when his farm operation ran into financial trouble.

At sentencing, the judge applied federal guidelines promulgated in 2009 and sentenced him to 70 months.

At oral arguments in February, Peugh argued that the sentence was nearly two years longer than it would have been had he been sentenced under the guidelines in effect at the time of his crimes.

The Supreme Court said that violated the Ex Post Facto Clause of the Constitution.

The court rejected the government’s argument that because the sentencing guidelines are advisory, they are not a “law” covered by the ex post facto prohibition.

“Even after the Sentencing Guidelines [were amended to become] 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. … The federal system adopts procedural measures intended to make the guidelines the lodestone of sentencing,” wrote Justice Sonia Sotomayor for the majority.

The court said the appropriate test was not whether the law actually changed the punishment, but whether there was a significant risk of increased punishment.

“Our ex post facto cases … have focused on whether a change in law creates a ‘significant risk’ of a higher sentence; here, whether a sentence in conformity with the new guidelines is substantially likely. … The 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. That is precisely what the amended guidelines did here. Doing so created a ‘significant risk’ of a higher sentence for [the defendant] and offended one of the principal interests that the Ex Post Facto Clause was designed to serve, fundamental justice,” the majority said.

Four dissenters complained that the guidelines had no legal effect on sentencing because they were discretionary and that any risk of a harsher punishment resulted merely from the guidelines’ persuasive, not binding, effect.

On the federal side, the ruling will reverse the practice by which judges were allowed to use sentencing guidelines in effect after the time of the crime – only the 7th U.S. Circuit Court of Appeals allowed this practice.

“The actual holding of the case has very little impact. It was a fair result for the very few people who would actually receive a sentence based on guidelines that post-dated the conduct,” said Amy M. Baron-Evans, sentencing resource counsel for the Federal and Community Public Defenders in Boston.

On the state sentencing side, defense lawyers predict more ex post facto claims.

“I think you’re going to have a lot of state court action to see whether their sentencing systems fit within the rule established here in Peugh,” said Kinnaird, noting that state regimes, such as parole or credits awarded by prisons, could face challenges.

The court made clear that even discretionary guidelines can create a significant risk of a higher sentence, potentially opening up state sentencing systems to challenge.

“States can no longer feel comfortable that the application of increased sentencing guidelines is immune from ex post facto review merely because the guidelines are discretionary,” said Stephen D. Benjamin, president of the National Association of Criminal Defense Lawyers and principal of Benjamin & DesPortes in Richmond, Va.

But Burns said the risk of the decision spreading to state sentencing is as likely as a rule in the National Hockey League spreading to Major League Baseball or the National Football League.

“My understanding is this is a narrow decision interpreting the federal sentencing scheme,” he said. “In those states [that have mandatory sentencing], this ruling may have some weight in having judges think twice, but what the Supreme Court said specifically about a federal statute would have no application to Idaho or New Jersey.”

While Berman said the ruling may prompt more challenges to state sentencing, he agreed that relatively few of them will have the ingredients for success.

“There’s no doubt that this somewhat robust approach to ex post facto may motivate more people to assert that a change in rules affects them, but the opinion is narrow enough and focused on the federal sentencing system, [and] I doubt it will be easy for many defendants to get any mileage out of it,” said Berman.

The ruling leaves open the question of whether regulatory schemes similar to punishment — such as where a state decides to require registration of sex offenders including those already convicted long before – fall under ex post facto punishment.

“The next question is going to be whether the consequences of a conviction created after an offense represents ex post facto punishment,” said Benjamin. “The argument will be that they are regulatory and not punishment. But to those affected it certainly feels like punishment.”