Monday, January 17, 2005

Bouie: Booker ex post facto (due process) Case o' The Week

In light of ex post facto issues for clients seeking mandatory guidelines, and in honor of Martin Luther King day, this Case o' The Week memo discusses the 1964 Bouie decision. (Bouie can be viewed here). Bouie will be key for any ex post facto challenges to post-Booker sentencing. The latest defense musings, arguments and citations on Booker can be found on the blogs below.

Facts: Two black civil rights protestors sat quietly in a white-only restaurant in South Carolina. 378 U.S. at 348. There was no "No Trespassing" notice in the restaurant. The protestors were warned to leave, arrested, and ultimately convicted. Id. At the time of the arrest, South Carolina law only permitted trespassing arrests after receiving adequate notice. Id. at 350. The state Supreme Court, however, re-interpreted the law to permit a conviction after a warning and refusal to leave. Id.

Issue(s): Does Due Process preclude judicial interpretation of a statute to increase criminal penalties after an act? Phrased differently, is there an ex post facto-like challenge to judicial interpretations of statutes?

Held: "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. "If a state legislature is barred by the Ex Post Facto Clause from passing such 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. Convictions reversed. Id. at 363.

Of Note: When bringing a post-Booker challenge to an increased (higher than guideline) sentence, pay careful attention to the Bouie test (where the litigation will undoubtably focus): "If a judicial construction of a criminal statute is unexpected and indefensible by reference to the law which had been expressed prior to the conduct in issue, it must not be given retroactive effect." Id. at 354 (emphases added). The dissenters’ surprise at Breyer’s novel remedy will help the defense when arguing this Bouie test. NOTE that this is not an ex post facto challenge, but a Due Process challenge where the logic of the Ex Post Facto Clause applies.

How to Use: The blogs below extensively discuss how to use Booker before favorable judges. Bouie comes into play with hostile courts, who look forward to exercising discretion to impose a sentence higher than the guideline range. In those cases, the defense can argue that pre-Booker conduct should be controlled by the mandatory guidelines.

Some AFPDs have made the a subtle (and difficult) argument that Bouie prevents higher than guideline sentences without all Blakely protections, but that lower than guideline sentences are now simply subject to the advisory guidelines. This may run into the USSG "one book rule" which prohibits picking and choosing favorable guidelines from two different sets of guidelines – but that rule is now only advisory, one assumes.

For Further Reading: Bouie is more than just a useful ex post facto case – it is an inspiring and important civil rights victory. The case was argued by Constance Baker Motley, who later became the first African American woman appointed to the federal judiciary. Judge Motley won nine out of the ten cases that she argued before the Supreme Court, and has had a distinguished career in the civil rights movement, the judiciary, and in the New York State Senate. For a healthy dose of inspiration, skip the Booker blogs and read Judge Motley’s bio here.

Steven Kalar, Senior Litigator, ND Cal.


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