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SCOTUS considering a case brought by Penn Law’s Supreme Court Clinic

March 18, 2013

Currently batting a thousand, with two cases in the win column, students from Penn Law’s Supreme Court Clinic traveled to Washington, D.C., just before spring break to hear oral arguments in their Clinic’s third and final case of this U.S. Supreme Court term.

At issue: whether the Ex Post Facto Clause of the U.S. Constitution is violated when a court uses U.S. Sentencing Guidelines in effect at the time of sentencing to impose a longer sentence than the defendant would have received under more lenient Guidelines in effect at the time of his offense.

The legal argument the students helped to formulate maintained that the constitutional right to be free of retroactive (ex post facto) laws was violated when their client was sentenced to 70 months in prison in a check-kiting scheme. They will learn by the end of the Term in June whether the Justices agree.

Penn Law’s Supreme Court Clinic, which enrolls a dozen students, is now in its fourth full year of operation. Directed by Prof. Stephanos Bibas, it provides students a rare opportunity to hone their research and writing skills while gaining firsthand experience of what practice is like at the pinnacle of the legal profession.

“The students are always very excited to work on these cases,” Bibas said. “Very few lawyers ever get to do this. In law school, students get this tremendous window into practice.”

Students, who must be good writers to be accepted into the Clinic, move “from good to great” over the course of the year, he added. “They are not working on a mock memo. There’s a real client, and real lawyers are involved in rewriting the brief multiple times, until students see what a polished, final work-product looks like. All students in the Clinic end up having written real work-product that gets revised and then goes to the Justices.”

In addition to researching and helping draft the brief, the students participate in moot court rehearsals conducted days before the oral arguments at the Supreme Court. Students enrolled in the Clinic also participate in a semester-long seminar on Supreme Court Practice and Process.

“Being in the Supreme Court Clinic is absolutely the best of all worlds in law school,” said Danielle Acker Susanj, a third-year student who worked on the brief in the sentencing guidelines case. “There’s no feeling like spending hours digging into a question, then seeing your research and even your words fit into a brief that gets filed at the Supreme Court and read by Supreme Court Justices, and hearing that research brought up at oral argument, either by a Justice or by the professor arguing the case.”

This year the Clinic has handled three cases. Chafin v. Chafin, a case argued in December, involved international custody law. In January, Clinic faculty member James Feldman argued Levin v. U.S., a medical malpractice case involving a Navy doctor and the issue of sovereign immunity under the Federal Tort Claims Act. The Clinic was on the winning side in both cases, which were decided unanimously, with one more decision pending.

Bibas, a former law clerk to Justice Anthony Kennedy and a former federal prosecutor, established the Clinic in 2009 in partnership with the Paul Hastings law firm in Washington, D.C., where Stephen B. Kinnaird, also a former Kennedy clerk, heads the firm’s Supreme Court and appellate litigation practice.

Last spring, Kinnaird and Bibas, whose scholarship focuses on plea bargaining and sentencing, became aware that federal courts in the Seventh Circuit had taken the position that even when the U.S. Sentencing Commission greatly raises sentencing guideline penalties those penalties can apply retroactively to a crime committed years earlier. “That seemed strange to us, because most people in the criminal justice system understand that the U.S. Sentencing Guidelines carry a lot of force. Judges are heavily influenced by them, and most sentences wind up being within or very close to the recommended sentencing ranges,” Bibas said.

So he and Kinnaird began looking for a test case. They found a recently decided case involving a man named Marvin Peugh. Peugh had been involved in a check-kiting bank-fraud scheme in 1999-2000. At the time, his crime would have reaped a 3-4 year sentence under the U.S. Sentencing Guidelines.  Peugh wasn’t sentenced until 2008, however, and in the interim the sentencing guidelines for white-collar crimes such as his had been stiffened at Congress’s request, in reaction to Enron and other financial scandals.

Under the new Guidelines, the recommended sentence for Peugh’s offense was 70-80 months. He received 70 months, close to three years longer than he would have gotten under the maximum Guideline sentence in effect at the time of his crime.

The case of Peugh v. U.S., which Kinnaird argued last month before the Supreme Court, will turn on whether the Justices consider the Guidelines merely discretionary or carrying greater legal force. At the oral arguments, the Justices seemed divided. According to a SCOTUSblog report by Rory Little, Chief Justice John Roberts and Justices Antonin Scalia and Samuel Alito “seemed to make it clear that they find no constitutional problem here.”

What the majority believes, and whether the Clinic maintains its perfect record this year, will be decided in coming months.