In a case brought by the University of Pennsylvania Law School’s Supreme Court Clinic and the Paul Hastings law firm, the U.S. Supreme Court ruled June 10 that it violates the Ex Post Facto Clause of the Constitution to sentence a defendant based on sentencing guidelines increased after he committed his crimes.
“A retrospective increase in the Guidelines range applicable to a defendant creates a sufficient risk of a higher sentence to constitute an ex post facto violation,” the Court said.
The 5-4 decision in Peugh v. U.S. represents the Supreme Court Clinic’s third successful argument before the Supreme Court in the current term.
At issue in the case was whether the Ex Post Facto Clause applies to the Federal Sentencing Guidelines, now that they are no longer binding. The majority held it does.
“The ruling will control cases in which judges would apply newly adopted, tougher Guidelines to cases that are pending,” said Prof. Stephanos Bibas, director of Penn Law’s Supreme Court Clinic. “Penn’s students were invaluable in digging up sentencing statistics proving that increases in sentencing guidelines materially increase the actual sentences imposed, and Justice Sotomayor’s opinion for the Court relied substantially on that evidence.”
Last spring, Bibas and Paul Hastings partner Stephen B. Kinnaird, who argued the case, 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 three-to-four year sentence under the U.S. Sentencing Guidelines. Peugh wasn’t sentenced until 2009, 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 decision found that the Guidelines, although discretionary, still play an important role in sentencing procedures.
“This is an important constitutional decision,” said Kinnaird. “The decision will affect every federal sentencing in the common circumstance where the U.S. Sentencing Commission increases the recommended sentencing range after the time of the defendant’s offense. Moreover, it applies to the many states that use similar discretionary sentencing guidelines systems, and the principles it establishes will also apply to discretionary parole systems.”
The two other Clinic cases handled this term were Chafin v. Chafin, a case involving international custody law, and 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.
Penn Law’s Supreme Court Clinic, which enrolls a dozen students, is now in its fourth full year of operation. 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.