Booker: ex post facto independent of due process

The Booker remedial opinion presents a sui generis approach to statutory construction. The Court interpreted the Sentencing Reform Act to provide mandatory guidelines with the proviso that, if the Supreme Court held the Sixth Amendment to apply to guideline enhancements, Congress intended that the mandatory provisions be severed and excised, leaving a new advisory sentencing scheme in place of the old mandatory statute. Because the statutory amendment was triggered by the judicial decision in Justice Stevens’s constitutional majority, the defense has largely looked to Bouie due process as the locus for ex post facto protection. The ex post facto clause of Article 1, Section 9, Clause 3, should be read to provide independent protection for those disadvantaged by the remedial statutory guidelines.

The SRA, as remediated in the Supreme Court, is an ex post facto law to the extent it is applied retrospectively to persons who are disadvantaged by the new SRA and whose offense occurred prior to January 12, 2005.The statutory approach provides a more familiar and easily applied ex post facto analysis. Although Bouie and its progeny provide an alternate route to ex post facto protection, treating the altered SRA as the legislative creation it is, rather than as a statute with an unexpected judicial definition of a statutory provision, provides a more direct route to protect defendants disadvantaged by the new version of the SRA. The modified excerpt from a brief by Oregon AFPD Chris Schatz (here) demonstrates how the due process and ex post facto arguments complement each other.

The ex post facto clause prohibition forbids Congress from enacting any law "which imposes a punishment for an act which was not punishable at the time it was committed; or imposes additional punishment to that then prescribed." Cummings . As the Court made clear in Calder in 1798, the "enhancement of a crime, or penalty, seems to come within the same mischief as the creation of a crime or penalty." The Supreme Court has applied the ex post fact clause to bar retroactive application of a disadvantageous change in the burden of proof for an offense (Carmell)(quantum of evidence necessary to prove rape), the "formula" used to determine a defendant’s sentence (Morales)("[T]he Ex Post Facto Clause forbids the States from enhancing the measure of punishment by altering the substantive ‘formula’ used to calculate the applicable sentencing range"), and the discretionary options available for a less onerous sentence (Miller).

The Booker remedial opinion construes the SRA to have a specific savings provision. Justice Breyer defined the task imposed on the Court by Justice Stevens's merits opinion as discerning Congress’ likely intent if the Sixth Amendment were to apply to sentencing enhancements: "we have examined the statute in depth to determine Congress’ likely intent in light of today’s holding." (emphasis in original). The construction of a statute by the Supreme Court results in an authoritative statement of "what the statute meant before as well as after the decision of the case giving rise to that construction" (Bousely & Rivers). Hence, Justice Breyer’s opinion effectively states that, to read the SRA according to the intent of Congress, it must be read as if, from its inception, it provided for the severance of §§ 3553(b)(1) and 3742(e) in the event the Supreme Court applied the Sixth Amendment’s jury trial entitlement to guideline enhancements.

The contingency (i.e., application of the Sixth Amendment to the Sentencing Guidelines) has now occurred with the pronouncement of the Booker merits opinion. However, because the new sentencing law, in which the Sentencing Guidelines are advisory only, has, by Congressional intent, only come into operation after January 12, 2005, the new SRA cannot be imposed on defendants to their disadvantage without violating the ex post facto prohibition of Article I, § 9, cl. 3, regardless of forseeability (Miller)("The constitutional prohibition against ex post facto laws cannot be avoided merely by adding to a law notice that it might be changed.").

The straight ex post facto analysis has the virtue of being familiar and easily applied. From the outset of the amendment process to the Sentencing Guidelines, the courts have uniformly applied the ex post facto clause to disadvantageous amendments. In fact, the Sentencing Commission institutionalized the analysis by adopting the "one book rule" in U.S.S.G. § 1B1.11 in 1992. In footnote 17 of the Second Circuit’s post-Booker Crosby case, the court expressly leaves the potential ex post facto question open by reference to a pre-Booker guideline case, implicitly recognizing the analogy to amendments under the Sentencing Guidelines.

Given the Booker remedial opinion’s unprecedented statutory construction and reformulation of the SRA, the prohibition on retrospective laws is perfectly appropriate: Congress shall pass no ex post facto laws. If the Supreme Court is giving the SRA a construction that Congress would have excised the mandatory provisions upon a certain Supreme Court ruling, Congress must follow the constitutional limitation by only allowing prospective application to defendants disadvantaged by the new law.

The class of disadvantaged defendants is discrete and to some extent self-defining. Defendants are clearly disadvantaged who entered post-Blakely pleas or went to trial, with enhancements barred by the lack of admissions or proof to a jury, especially where jeopardy barred convening of a sentencing jury (Patterson). On the other hand, the ex post facto analysis will be irrelevant for those defendants for whom relief from mandatory guidelines is beneficial. Given the Ninth Circuit’s broad requirement that "the existence of discretion requires its exercise" (Miller, 722 F.2d at 565), many defendants will not be disadvantaged but will potentially benefit from the opportunity for resentencing with judicial discretion to impose a lower sentence.