Harsher Sentencing Guidelines Can’t Be Used for Old Offenses, Justices Say
WASHINGTON — In a 5-to-4 decision
that broke along ideological lines, the Supreme Court on Monday ruled
that courts violate the Constitution when they rely on current federal
sentencing guidelines if those guidelines call for harsher punishment
than the ones in place at the time of the offense.
If such sentencing guidelines were mandatory, as they once were, the case would have been easy. But in 2005 the Supreme Court ruled
that the guidelines must be treated as advisory to avoid running afoul
of a line of Sixth Amendment cases requiring that juries rather than
judges make the factual findings supporting criminal sentences.
The question that divided the justices on Monday was whether the current
discretionary guidelines retained enough force to subject defendants to
a substantial risk of additional punishment and thus violate the
Constitution’s ex post facto clause, which prohibits enhanced
The case, Peugh v. United States, No. 12-62, arose from bank fraud
committed in 1999 and 2000 by Marvin Peugh, an owner of two farming
businesses. When it came time for sentencing in 2010, the trial judge
took note of the guidelines then in place, which suggested a sentence
between 70 and 87 months. The judge settled on the lower number.
Had the judge instead referred to the guidelines in place at the time of
the fraud, the suggested range would have been 30 to 37 months. “The
low end of the 2009 guidelines range,” still in effect in 2010, Justice
Sonia Sotomayor wrote for the majority on Monday, “was 33 months higher
than the high end of the 1998 guidelines range,” which were in effect in
1999 and 2000.
Justice Sotomayor said guidelines imposed significant constraints on
sentencing judges even after being made advisory. The guidelines
remained, she said, quoting an earlier Supreme Court decision, “the
starting point and the initial benchmark.” Trial judges are required to
explain the basis for the sentences they impose, she added, with a major
departure from the guidelines requiring “a more significant
justification than a minor one.”
Appellate review of sentences is relaxed, though it does take account of
variance from the guidelines along with other factors. “Common sense
indicates that, in general, this system will steer district courts to
more within-guidelines sentences,” Justice Sotomayor wrote.
That was enough, she said, to establish a violation of the ex post facto
clause in Mr. Peugh’s case under the standard set out in a 1995
decision, California Department of Corrections v. Morales
That decision said the clause bars new laws that create a “sufficient
risk of increasing the measure of punishment attached to the covered
“A retrospective increase in the guidelines range applicable to a
defendant,” Justice Sotomayor concluded, “creates a sufficient risk of a
higher sentence to constitute an ex post facto violation.”
Justices Ruth Bader Ginsburg, Stephen G. Breyer and Elena Kagan joined
all of the majority opinion, and Justice Anthony M. Kennedy most of it.
In dissent, Justice Clarence Thomas wrote that the guidelines, since
they are only advisory, “do not constrain the discretion of district
courts and, thus, have no legal effect on a defendant’s sentence.” That
means, he said, that there was no violation of the ex post facto clause
under the standard announced in the Morales case.
Chief Justice John G. Roberts Jr. and Justices Antonin Scalia and Samuel
A. Alito Jr. joined that part of Justice Thomas’s dissent.
Writing only for himself, Justice Thomas added that the analysis both
sides had used, derived from the Morales decision, was at odds with the
original meaning of the ex post facto clause, which referred, he said,
only to “the punishment affixed by law.”
This was, he said, self-criticism. “As the author of Morales,” Justice
Thomas wrote, “failure to apply the original meaning was an error to
which I succumbed.”
Labels: Constitutional Rights, Crime, Punishment, The Constitution, U. S. Supreme Court