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February 6, 2005

Ex post facto headaches from any legislative response to Booker

Who can resist blogging during the Super Bowl halftime (with Paul McCartney in the background and no wardrobe malfunctions in sight)?  In honor of Super Booker Sunday, I can now finish up a post I started this morning about ex post football, ... err, I mean ex post facto.

In my testimony in November to the US Sentencing Commission, I expressed concern that any legislative response to Booker "risks sowing greater confusion and uncertainty — and lots and lots of litigation — about applicable federal sentencing laws and practices."  At the time, and still today, my concerns center around ex post facto litigation headaches if "the Bowman fix" (aka topless guidelines) is enacted and seeks to be immediately applied as a response to Booker.

After speaking to many smart folks about the ex post facto implications of the Bowman fix, I concluded that no one is really sure how to tackle the issue.  Consequently, I asked my smart research assistant to do a memo for me on the topic.  Proving how smart I am to hire such smart help, my RA's memo, which can be downloaded below, does a masterful job sorting through these issues.  In addition to spotlighting many key ex post facto issues, the memo serves as an important reminder that any effort to apply a post-Booker legislative fix immediately risks producing another wave of confusing litigation.

Download johnson_ra_ex_post_facto_memo.doc

February 6, 2005 at 08:33 PM | Permalink

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Comments

Excellant memo on a very important issue!

Posted by: Jim Felman | Feb 7, 2005 8:20:39 AM

I agree, Jim, and I hope others will review this memo and, perhaps through comments or other means, continue a dialogue about these ex post concerns.

Posted by: Doug B. | Feb 7, 2005 10:15:43 AM

This is good. The reasoning would appear also apply to the current situation with pending appeals. The guidelines range would be the maximum sentence, but the bottom of the guidelines range no longer defines the minimum sentence. In essence the Supreme Court created the opposite of the Bowman fix. The bottom of the guidelines has been moved to the minimum sentence allowed by the statute defining the crime.

Posted by: Jim Rice | Feb 10, 2005 4:47:59 PM

I am a disbarred alwyer now serving electronic detention after my release which I consider to be an invalid ex post facto law. I want to challenge this in Illinois courts. Help?

Posted by: James R. Snyder | Feb 20, 2006 4:59:30 PM

I am a disbarred alwyer now serving electronic detention after my release which I consider to be an invalid ex post facto law. I want to challenge this in Illinois courts. Help?

Posted by: James R. Snyder | Feb 20, 2006 5:00:09 PM

I am a disbarred alwyer now serving electronic detention after my release which I consider to be an invalid ex post facto law. I want to challenge this in Illinois courts. Help?

Posted by: James R. Snyder | Feb 20, 2006 5:00:10 PM

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