26 Pages Posted: 7 Jul 2011 Last revised: 30 Aug 2011
Date Written: Spring 2011
United States v. Booker famously excised the mandatory provisions of the federal Sentencing Guidelines, making them “effectively advisory.” Judges are still required to calculate the applicable Guidelines range, however, and will rarely be overturned if they impose a within-Guidelines sentence. The question thus arises: if the Guidelines are not formally mandatory, but remain the de facto basis for sentencing, does use of post-crime Guidelines violate the Ex Post Facto Clause? A circuit split on this issue has developed, with the Seventh Circuit authorizing the use of post-crime Guidelines and the D.C. Circuit holding that such use can violate the ex post facto prohibition. This article examines both the legal standards and the empirical evidence, ultimately arguing that the use of post-crime Guidelines does not violate the Ex Post Facto clause.
Keywords: ex post facto, sentencing guidelines, booker
Suggested Citation: Suggested Citation
Holley, Benjamin, The Constitutionality of Post-Crime Guidelines Sentencing (Spring 2011). William Mitchell Law Review, Vol. 37, No. 2, 2011. Available at SSRN: https://ssrn.com/abstract=1878783