So just how advisory are the “advisory” federal sentencing guidelines? That was the central question in the U.S. Supreme Court’s decision earlier today in Peugh v. United States, which held that guidelines amendments resulting in harsher recommended sentences are limited by the Ex Post Facto Clause of the Constitution.
The Court converted the federal sentencing guidelines from mandatory to advisory in 2005, but left unanswered many important questions about what exactly it means for the guidelines to be “advisory.” Several of these questions were answered in a trilogy of 2007 decisions, which effectively established a new and unique sentencing system for the federal courts. Although sentencing judges are not required to follow the guidelines, the Supreme Court did put a thumb on the scales in favor of guidelines sentences. Dissenting justices objected that this kinda-sorta advisory system violated the Sixth Amendment, but to no avail.
The new system also raised Ex Post Facto Clause issues, which divided the lower courts. Peugh nicely illustrates the problem. Read more »