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April 17, 2009

Notable student note defending a new ex post facto analysis after Booker

As I have indicted in a prior post, I think one of the most interesting and amazingly underexamined post-Bookerissue concerns whether or not the conversion of the guidelines to advisory status changed the settled pre-Booker determination that ex post facto doctrine precluded the application of new harsher guidelines to old crimes. Consequently, I am pleased to see this new student note on the issue, titled "Defending Demaree: The Ex Post Facto Clause's Lack of Control Over the Federal Sentencing Guidelines after Booker."  Here is the abstract:

In 2005, the U.S. Supreme Court held that the Federal Sentencing Guidelines violated a defendant's Sixth Amendment right to a jury trial because they allowed a judge to depart from a mandatory range based on facts not presented to a jury.  As a solution, the Court modified the Guidelines to be "advisory," yet curiously held that sentences were still subject to appellate review for reasonableness.  Given this tension, U.S. courts of appeals are split on whether the Guidelines are "laws," subject to the Ex Post Facto Clause of the U.S. Constitution.  This Note argues that the Guidelines are advisory, given the level of deference the Supreme Court and circuit courts have recently given to sentencing judges in departures from the Guidelines, and thus they are not "laws" under the Ex Post Facto Clause.

As I have noted before here, I believe that the Justice Department's official position on this ex post facto issue has changed after the Supreme Court's ruling in Irizarry.  But I am not sure if there are any good cases in the pipeline to get this issue to before SCOTUS anytime soon.

April 17, 2009 at 04:35 PM | Permalink


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Aren't all laws mandatory by definition, or else they are just advice, hopes, and dreams, not subject to coercive enforcement by a court? If something is discretionary it cannot be a law. Is that the point Prof. Berman finds notable?

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