Ex Post Facto Problems: Changes in Sentencing Guidelines and Statutes and Policy Statements on Revocation of Supervision

• NCJ Number: 132071
• Journal: Federal Probation Volume: 55 Issue: 2 Dated: (June 1991) Pages: 69-75
• Author(s): T D Slawsky
• Date Published: 1991
• Length: 7 pages
• Sale Source: National Institute of Justice/; NCJRS Photocopy Services
• Publication Type: Legislation/Policy Analysis
• Language: English
• Country: United States of America

Annotation

This article explores whether sentencing guideline amendments have ex post facto consequences, whether these amendments must be considered in groups to determine if they enhance punishment overall, how to handle multiple-count cases when offenses occurred under different guidelines, and the applicability of the ex post facto clause to statutes and policy statements controlling the revocation of supervision.

Abstract

The Constitution provides that "no Bill of Attainder or ex post facto Law shall be passed." The Sentencing Reform Act of 1984 provides both that the sentencing guidelines are subject to periodic amendment and that the guidelines and policy statements in effect at the time of sentencing apply. Clearly, Congress did not believe that the ex post facto clause would apply to guideline changes. All circuits that have considered the issue disagree with Congress' determination, finding under the reasoning of Miller v. Florida that guideline amendments that disadvantage offenders and apply to offenses committed prior to the effective date of the amendments violate the ex post facto clause. Effective dates of adverse criminal penalties, be they statutes or guidelines amendments, are amenable to a clear and easy rule, i.e., they apply only to offenses committed on or after their effective date. 13 notes