45 Pages Posted: 1 Apr 2009 Last revised: 21 Apr 2009
Date Written: March 30, 2009
In 2005, the U.S. Supreme Court held that the Federal Sentencing Guidelines violated a defendant's Sixth Amendment right to a jury trial because they allowed a judge to depart from a mandatory range based on facts not presented to a jury. As a solution, the Court modified the Guidelines to be advisory, yet curiously held that sentences were still subject to appellate review for reasonableness. Given this tension, U.S. courts of appeals are split on whether the Guidelines are laws, subject to the Ex Post Facto Clause of the U.S. Constitution. This Note argues that the Guidelines are advisory, given the level of deference the Supreme Court and circuit courts have recently given to sentencing judges in departures from the Guidelines, and thus they are not laws under the Ex Post Facto Clause.
Keywords: Booker, Demaree, Ex Post Facto Clause, Federal Sentencing, Sentencing Guidelines, Federal Sentencing Guidelines, Ex Post Facto
Suggested Citation: Suggested Citation
Levy, Daniel M., Defending Demaree: The Ex Post Facto Clause's Lack of Control Over the Federal Sentencing Guidelines after Booker (March 30, 2009). Fordham Law Review, Vol. 77, p. 2623, 2009. Available at SSRN: https://ssrn.com/abstract=1370547