BY MATTHEW E. KOHEN — On June 10, 2013, the Supreme Court of the United States issued its opinion in Peugh v. United States. This case—involving the retroactive application of U.S. Sentencing Guidelines—implicates interesting constitutional concerns. In a term where some of the opinions issued (see, e.g., Salinas v. Texas and Maryland v. King) caused some commentators concern that our most basic liberties were being diminished, Peugh serves as a refreshing reminder that the staple provisions of the Constitution are still intact.
In a 5-to-4 decision split along the familiar ideological lines, the Court held that the Constitution’s Ex Post Facto Clause (Art. I, § 9) prohibits federal courts from sentencing a defendant based on Guidelines that were promulgated after the commission of his crimes where the newer Guidelines provide for a higher sentencing range than the version in place at the time of the offense. Marvin Peugh was convicted in 2009 on charges of federal bank fraud. When the crime was committed in 1998, the U.S. Sentencing Guidelines recommended a sentence in the range of 30 to 37 months. When Peugh was sentenced in 2009, however, the Guidelines had been changed and now recommended a sentence of 70 to 87 months.
Although Peugh’s attorney alerted the sentencing judge to this difference, the judge rejected the argument, stating that “a sentence within the [G]uideline[s] range is the most appropriate sentence in this case.” The sentencing judge then sentenced Peugh at the low end of the 2009 Sentencing Guidelines. The Court, per Justice Sotomayor, seized ahold of this finding to justify the conclusion that the Guidelines effectively had the force of law, and that the judge would have sentenced Peugh to 30 to 37 months had the Guidelines not been changed between the commission of the offense and sentencing.
Interestingly, in 2005, the Court decided United States v. Booker, holding that the Sentencing Guidelines were not mandatory, but merely advisory. Depsite this fact, the Court considered the guidelines to be within the scope of the Ex Post Facto Clause. This was due in large part to Justice Sotomayor’s finding that “[i]n less than one-fifth of cases since 2007 have district courts imposed above- or below-Guidelines sentences absent a Government motion.”
The decision makes eminent sense. While the Sentencing Guidelines may not strictly be law, they bear many qualities that give them the force of law. For instance, even though the Guidelines are no longer mandatory, they still play an important role in a federal judge’s decision-making. In fact, failing to look at or follow the Guidelines may constitute reversible error. Discretionary or not, federal judges follow the Guidelines in the vast majority of cases.
In layman’s terms, the Ex Post Facto Clause prevents, among other things, the government from passing a law that retroactively imposes a sentence greater than that in effect at the time the crime was committed. The majority settled on an interesting interpretation of the Ex Post Facto Clause. Rather than —as the dissent urged—hold the Ex Post Facto Clause inapplicable because the Sentencing Guidelines are not truly law, the majority looked to the underlying principles of what the Clause sought to accomplish. Looking to the intent of the Framers, the plurality determined that “[t]he Clause ensures that individuals have fair warning of applicable laws and guards against vindictive legislative action.” Expanding this definition, the plurality held that even where such concerns are not directly implicated, the Ex Post Facto Clause “safeguards a fundamental fairness interest.”
By expanding the reach of the Ex Post Facto Clause, the Court preserved what it perceived to be the underlying principles of the Constitution. This decision was just one of many interesting opinions issued in what is sure to be a historic term.