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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Bond’s Back: SCOTUS to Take Another Look at Case on Federalism and Criminal Law

The recent suicide of Aaron Swartz has provoked a great deal of public discussion of what many consider to be overreaching by federal prosecutors in his case.  In the view of some critics, Swartz’s theft of academic articles from JSTOR would have been more properly handled as a minor property offense in state court.  Instead, Swartz found himself in federal court facing a possible 35 years in prison and a set of charges invoking a variety of obscure federal criminal statutes.

Whatever the merits of the criticisms, they have served to draw public attention to the extraordinary power exercised by federal prosecutors and the uncertain line between what is most appropriately handled in state court and what is most appropriately handled in federal.

Although the Swartz litigation is now presumably over, another case that has provoked similar charges of prosecutorial overreaching is now on its way to the Supreme Court . . . for a second time.  

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New Essays on Restitution and Sentencing Commissions

I have two new essays on SSRN assessing the history and future prospects of restitution and sentencing commissions, respectively. These essays will be published later this year in the Encyclopedia of Criminology and Criminal Justice.

The restitution essay covers such topics as Randy Barnett’s proposal that restitution be used in lieu of imprisonment as our basic form of criminal punishment, debates regarding which types of victims should be able to recover for which types of injuries, and the question of whether victims seeking restitution should be given a right to legal representation.

The sentencing commissions essay focuses particularly on the Minnesota and federal sentencing commissions. In considering these case studies, as well as the experience with sentencing commissions in a few other states, my primary theme is the relationship between sentencing commissions and legislatures. (As I point out in the essay, although sentencing commissions are predominantly legislative creations, commissions have often struggled to maintain their relevance in the face of ongoing legislative policymaking in the sentencing area, which frequently takes the form of harsh statutory responses to the “crime du jour.”) A secondary theme is the relationship between commissions and judges—another relationship that has sometimes proven quite challenging for the commissions to manage effectively.

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