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July 11, 2011

"The Constitutionality of Post-Crime Guidelines Sentencing"

The title of this post is the title of this new piece by Benjamin Holley, an Illinois Assistant State's Attorney, which is now available via SSRN. Here is the abstract:

United States v. Booker famously excised the mandatory provisions of the federal Sentencing Guidelines, making them “effectively advisory.”  Judges are still required to calculate the applicable Guidelines range, however, and will rarely be overturned if they impose a within-Guidelines sentence.  The question thus arises: if the Guidelines are not formally mandatory, but remain the de facto basis for sentencing, does use of post-crime Guidelines violate the Ex Post Facto Clause?

A circuit split on this issue has developed, with the Seventh Circuit authorizing the use of post-crime Guidelines and the D.C. Circuit holding that such use can violate the ex post facto prohibition.  This article examines both the legal standards and the empirical evidence, ultimately arguing that the use of post-crime Guidelines does not violate the Ex Post Facto clause.

July 11, 2011 at 05:26 PM | Permalink


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Obviously, Mr. Holley is a legal neophyte pontificating on the ex post facto clause. He, in his article, even cites to Calder vs. Bull opinion, wherein Justice Samuel Chase has clearly stated “2d. Every law that aggravates a crime, or makes it greater than it was, when committed. 3d. Every law that changes the punishment, and inflicts a greater punishment, than the law annexed to the crime, when committed.” The first issue with Mr. Holley’s argument is the prohibition of “enactment” of ex post facto laws, itself. Further, the operative phrases in Justice Chase’s “definitions” are “aggravates a crime” and “changes the punishment.” Just the mere existence of the POSSIBILTY of inflicting greater penalty is sufficient to trigger an ex post facto clause violation. Mr. Holley must be one of those people who think that the US Federal Constitution is mad of silly putty, which they can manipulate at will. He really needs to take a refresher course on the Constitution. What galls me even more is that he is trying to justify the violation of ex post facto clause under the guise of what could be termed a “harmless-error review” and “abuse-of-discretion review” under the putative discretion granted by Booker and its progeny. Scalia would have a field day with this lawyer. We should let this greenhorn of an author argue his article’s subject before the current US Supreme Court. Ex post facto prohibition is not amenable to interpretation, period. I simply do not understand why the courts cannot use the correct version of Guidelines and accurately calculate the offense level in the first instance (as held by almost all the circuit courts to consider this issue; even the US Supreme Court has stated it so in the Booker decision and its progeny), for this will be used as a baseline from which the district court could vary, or depart to impose the actual sentence. The problem is the US Probation Office screws it up and the defense attorneys are oblivious to these essential criteria that it becomes a big issue in the later stages of the case – appeal, or collateral attack. (Prosecutors have no incentive to reduce the offense level, anyway.) If we were agree that ex post facto prohibition is not animated by the use of wrong version of the Guidelines, then why would we even need a statutory maximum? Why do we not let the sentences under all the statutes be from 0 to lifetime and up to the sentencing judges’ discretion? Posner, a jurist whom I admire and respect, was clearly wrong – as many jurists are – in Demaree. What Posner did was basically a “post-hoc rationalization” of the district judge’s sentence. Post-hoc rationalization has been demonized, denounced, vilified, and not to mention overruled by many reviewing courts, including the US Supreme Court. I just hope that no defendant will have this guy as a defense attorney.

Posted by: John Marshall | Jul 11, 2011 10:07:13 PM

"Obviously, Mr. Holley is a legal neophyte pontificating on the ex post facto clause."

Nah he's one of the little hatefilled nazi's who have basically turned anyone convicted of a sex crime into lifetime slaves of the state. Who can expect a NEW RULE and NEW CONTROL on their lives very 6-8 months for the REST OF THEIR LIVES!

Posted by: rodsmith | Jul 11, 2011 10:36:28 PM

Rod Smith:

I am not sure that I follow you?! Could you elaborate, please?

Posted by: John Marshall | Jul 11, 2011 11:03:40 PM

lol what's to follow!

we have 100's of THOUSANDS of people now on the megan's law registy who were convicted YEARS if NOT DECADES before it's passage. hard to NOT be an expost law when in that 95% of off criminal convictions that resulted via a PLEA BARGAIN that did not even mention the registry or it's follow up rules SINCE THEY DIDN'T EXIST YET!

you also seem to have missed the 1,000's of new laws that are passed EVERY YEAR around the country that tell these individuals


almost every one applies to EVERYONE ON THAT LIST!

which part of expost! didn't you get!?

Posted by: rodsmith | Jul 12, 2011 2:25:40 PM

but the big point i'm trying to make is simple

we allowed the govt to VIOLATE THE CONSTUTION in the case of sex offenders. WHY are you and anyone else suprised they are now moving it into OTHER areas now that the population of this country has been stupid enough to all the president to be set!

Posted by: rodsmith | Jul 12, 2011 2:28:12 PM

If you give a mouse a cookie, he'll want a glass of milk.

If you give a politician the chance to violate the Constitution, he'll want to do it over and over and over again.

Posted by: Eric Matthews | Jul 13, 2011 2:18:18 AM

I recently wrote a law review comment about the same topic (for the University of Chicago Law Review, but not slated for publication). I read the article this post links to and was shocked. The article completely ignores the numerous circuit court decisions that side with the D.C. District Court (which the author deceptively portrays as the lonely side in a split against the 7th circuit). By ignoring ALL of these circuit court decisions directly on point, the article creates an incredibly simplified straw man and then doesn't even manage to really attack it. Anyone interested in the topic should read one of the several other published articles addressing this topic, along with the circuit court cases ignored by the author of this article. I can't help but feel the author was just being dishonest in not mentioning them.

Posted by: James Macleod | Jul 22, 2011 3:50:27 PM

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