(This column first ran in the Chicago Daily Law Bulletin in July, 2013)
Although it was not publicized as much as the ruling on DNA that came out around the same time, the United State's Supreme Court's ruling in Peugh v. United States, 12-62, will likely have a far broader immediate impact on criminal cases in federal courts. The Court ruled that the Constitution's Ex Post Facto Clause is violated when a defendant is sentenced under a later and more harsh sentencing guideline, even though the federal sentencing guidelines are not mandatory.
Split along the usual liberal/conservative divide with Justice Kennedy tipping the balance (both ways), the Court held that a Defendant convicted for wrongdoing from 1999 and 2000 could not be sentenced under guidelines promulgated in 2009.
Although the federal sentencing guidelines have been advisory since the Court ruled so in 2006 in United States v. Booker, every federal sentencing begins with the sentencing guidelines being properly calculated, and proceeds with a full analysis as to whether a sentence within the guideline range is reasonable. Consequently, the Court noted, quoting a prior ruling, "As a matter of administration and to secure nationwide consistency, the Guidelines should be the starting point and the initial benchmark."
This is because the "post-booker sentencing scheme aims to achieve uniformity by ensuring that sentencing decisions are anchored byt he Guidelines and that they remain a meaningful benchmark through the process of apellate review." As a result, because the "Guidelines [are] the lodestone of sentencing," use of a later more harsh guideline violates the progeny of Ex Post Facto Clause cases that forbid the government from action designed "to enhance the measure of punishment by altering the substantive 'formula' used to calculate the applicable sentencing range."
This ruling is important because every year 98 percentage of all federal criminal cases result in either a conviction or guilty plea--meaning that almost all federal criminal litigation is about the sentence. And, unlike Congress, the United States Sentencing Commission is fairly active, promulgating revised guidelines almost every year.
Immediately following the release of the Supreme Court opinion, the Sentencing Commission released a statement, saying in part, "The Court recognized that the post-Booker federal sentencing system aims to achieve uniformity by ensuring the sentencing decisions are anchored by the Guidelines, and all members of the Court recognized the continuing influence of the Guidelines.