SCOTUS: Guidelines Amendments Trigger Ex Post Facto Protections

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. 

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Habeas Roundup: SCOTUS (Slightly) Eases Petitioners’ Paths

The U.S. Supreme Court has issued a flurry of habeas corpus decisions in the past two weeks.  The habeas petitioner won in two of the cases and lost in the third.  There are no blockbusters in the group, but habeas fans may find hope in two of the decisions that long-awaited breakthroughs may be in the works.

One that will be welcomed by habeas fans is McQuiggin v. Perkins (No. 12-126).  Perkins was convicted of murder in state court, with the judgment becoming final in 1997.  More than eleven years later, Perkins filed a federal habeas corpus petition, alleging that he received unreasonably poor representation by his trial counsel.  The petition plainly violated the one-year statute of limitations for habeas petitions, but Perkins sought to get around the statute by presenting evidence that he was actually innocent of the crime of which he was convicted.  The Supreme Court has long recognized that actual innocence is an exception to the procedural default rule, which normally bars federal courts from considering habeas claims that were not timely raised in state court.  Perkins argued that there should also be an actual-innocence exception to the statute of limitations, and the Supreme Court agreed in a 5-4 decision.

Does this new exception threaten to eviscerate the statute of limitations?  

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If You Build It . . .

The paths followed by crime and incarceration in the United States have been mirror images of one another over the past two decades.  This can be clearly seen in the graph below, which I prepared for an upcoming conference presentation.

crime and imprisonment

The graph depicts year-by-year rates of imprisonment, homicide, and violent crime (the latter based on results from the National Crime Victimization Survey), indexed to 1992 rates. The mirroring effect is most pronounced if you compare imprisonment (green line) with homicide (red): between 1993 and 1999, imprisonment goes up at almost precisely the same rate that homicide goes down; in 2000, there is an abrupt leveling off in both areas; and neither has seen a lot of change since.  The violent victimization line (blue) mostly tracks the homicide line, save for an additional three years of rapid decline (1999-2002) and a notable uptick between 2009 and 2011.

The mirror-image paths might seem counterintuitive.  Shouldn’t less crime translate into less imprisonment?  Let me suggest three theories to account for what has happened.  

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