Whether or Not the Ex Post Facto Clause Can Be Used as a Defense to Prohibit the Increase in Federal Minimum/Mandatory Sentencing Guidelines After a Federal Defendant Has Committed the Crime
The most common imposed federal mandatory minimum sentences arise under the Controlled Substance and Controlled Substance Import and Export Acts, the provisions punishing the presence of a firearm in connection with a crime of violence or drug trafficking offense, the Armed Career Criminal Act, various sex crimes including child pornography, and aggravated identity theft. Critics argue that mandatory minimums undermine the rationale and operation of the federal sentencing guidelines which are designed to eliminate unwarranted sentencing disparity. Counter arguments suggest that the guidelines themselves operate to undermine individual sentencing discretion and that the ills attributed to other mandatory minimums are more appropriately assigned to prosecutorial discretion or other sources. State and federal mandatory minimums have come under constitutional attack on several grounds over the years, and have generally survived. The Eighth Amendment’s cruel and unusual punishments clause does bar mandatory capital punishment, and apparently bans any term of imprisonment that is grossly disproportionate to the seriousness of the crime for which it is imposed.
"Critical to relief under the Ex Post Facto Clause is ... the lack of fair notice and governmental restraint when the legislature increases punishment beyond what was prescribed when the crime was consummated." (USC § 3553(b)
B.A. 1999, Columbia University; J.D. Candidate 2004, The University of Chicago.
USC § 3553(b) (2000).
United States Sentencing Commission Guidelines Manual ("USSG") § 1BlIll(a), Policy Statement ("ps") (1998).