Risking Retroactive Punishment: Modifications of the Supervised Release Statute and the Ex Post Facto Prohibition
Posted: 30 Mar 2000
The Constitution bars both state and federal legislatures from passing ex post facto laws. This prohibition includes laws that increase punishments for crimes already committed. However, whether a change in a sentencing system actually increases punishment is often a close question. This Note uses the 1994 modifications of the federal supervised release statute and the ensuing confusion among the circuit courts about the ex post facto implications of these changes as an example of the difficulties the prohibition can cause. The Note argues that courts holding that the changes in the supervised release system do not increase punishment have misapplied Supreme Court precedents, which require lower courts to evaluate the risk that a statutory change will result in harsher punishments. Further, the Note argues that the Supreme Court should clarify its risk test by providing guidelines rooted in the original purposes of the ex post facto prohibition.
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