Friday, January 14, 2005

Booker: Due Process, not Ex Post Facto, to Seek Refuge in Guidelines

An immediate Booker concern is a judge who now feels free to sentence above a guideline range. We have been considering ex post facto bars to that approach, arguing that the mandatory guidelines must be applied for offenses that precede Booker. Actually, however, in light of Bouie this may be a due process argument.

AFPD Beverly Dyer had the great catch of Bouie v. City of Columbia, 387 U.S. 347 (1964). The decision can be found here.

In that case, black civil rights activists were arrested for "trespassing" by sitting in a whites-only restaurant. Id. at 349. The South Carolina Supreme Court interpreted the statute, retroactively, to permit a trespassing conviction when a defendant was warned to leave -- but didn't. Id. at 350. That gloss did not exist on the statute at the time of the offense.

The Court reversed, based not on ex post facto but on due process concerns. "There can be no doubt that a deprivation of the right of fair warning can result not only from vague statutory language but also from an unforeseeable and retroactive judicial expansion of narrow and precise statutory language." Id. at 352. The Court analogized this due process limitation on judicial action to the ex post facto bar on the legislature: "If a state legislature is barred by the Ex Post Facto Clause from passing a law, it must follow that a State Supreme Court is barred by the Due Process Clause from achieving precisely the same result by judicial construction." Id. at 353-54.

Here is the rub -- the Court articulated tests that may (or may not) fit with Booker:

"If a judicial construction of a criminal statute is unexpected and indefensible by reference to the law which has been expressed prior to the conduct in issue it must not be given retroactive effect." Id. at 354.

We all can certainly argue that Booker was "unexpected" and cite the dissents for that authority. I predict, thought, that this is where the battle will be fought. In other words, is it a due process violation to impose a greater-than-guidelines sentence after Booker, when the offense preceded that decision? More specifically, was the Booker revision of the statute "unexpected and indefensible by reference to the law?" That might be a hard sell.
I haven't looked at authority that arose after Bouie -- would be an interesting project.

Steven Kalar, Senior Litigator ND Cal.


Anonymous Anonymous said...

The due process argument will be more convincing for offenses committed pre-Blakely than post-Blakely/pre-Booker, i.e. Blakely was more suprising than Booker. Breyer's main opinion in Booker on remedy was to some extent anticipated in that the possibility of severance was on the table pretty shortly after Blakely was decided, but there's a decent argument that even that was unanticipated: no court had held that the statutes were unconstitutional and no court had reformed the statutes.

Ironically, an interesting application of this doctrine is found in People v. Blakeley (2000) 23 Cal.4th 82, (note the different spelling) a California Supreme Court case holding that its "judicial enlargment" of the crime of vol. manslaughter was unforseeable (and could not be applied retroactively) where at the time of the offense the only judicial authority on the issue had held the conduct was only invol. manslaughter:

Here, when defendant killed Vallo this court had not yet addressed the issue of whether an unintentional killing in unreasonable self-defense is voluntary or involuntary manslaughter. But three decisions by the Courts of Appeal in this state held that such a killing was only involuntary manslaughter [citations]; no case held to the contrary. Thus, our decision today—that one who, acting with conscious disregard for life, unintentionally kills in unreasonable self-defense is guilty of voluntary manslaughter rather than the less serious crime of involuntary manslaughter—is an unforeseeable judicial enlargement of the crime of voluntary manslaughter, and thus may not be applied retroactively to defendant. (See People v. Davis, supra, 7 Cal.4th at p. 812 [retroactive application improper when this court overturns consistent decisions by Courts of Appeal narrowly construing criminal statute].)"In addition to Bouie, look at these U.S. Supreme Court cases: United States v. Lanier (1997) 520 U.S. 259, 266-267 and Marks v. United States (1977) 430 U.S. 188, 191-192.

Jonathan Soglin
First District Appellate Project
San Francisco

Saturday, January 15, 2005 12:07:00 AM  

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