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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

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Ex post facto is most typically used to refer to a criminal statute that punishes actions retroactively, thereby criminalizing conduct that was legal when originally performed

Two clauses in the United States Constitution prohibit ex post facto laws. Courts have applied this standard to different parts of the criminal process. California Dep't of Corrections v. Morales, 514 US 499 (1995) takes the Beazell standard and applies it to the parole process.

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Federal mandatory minimum sentencing statutes limit the discretion of a sentencing court to impose a sentence that does not include a term of imprisonment or the death penalty. They have a long history and come in several varieties: the not-less-than, the flat sentence, and piggyback versions. Federal courts may refrain from imposing an otherwise required statutory mandatory minimum sentence when requested by the prosecution on the basis of substantial assistance toward the prosecution of others. First-time, low-level, non-violent offenders may be able to avoid the mandatory minimums under the Controlled Substances Acts, if they are completely forthcoming. 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.

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Federal judges must sentence convicted offenders according to guidelines promulgated and periodically revised by the United States Sentencing Commission ("The Commission"). By both statute and guideline, sentencing judges are required to apply the Guidelines Manual in effect at the time of sentencing. Citing the Ex Post Facto Clause, however, every circuit has rejected sentences produced by this rule where an applicable guideline was revised to the offender's detriment between the time the offense was committed and the time of sentencing.' A more difficult situation arises when the defendant is convicted of two offenses, the first committed before, and the second after, a revised edition of the Guidelines Manual becomes effective (B.A. 1999)

The guidelines direct the courts to apply the revised Manual to both offenses The circuit courts are split as to whether this violates the Ex Post Facto Clause. This Comment concludes that the provision requiring this result, § 1B1.11(b)(3), is unconstitutional. The Ex Post Facto Clause provides simply, "No ... ex post facto Law shall be passed." This prohibition is understood to extend to a special class of criminal laws- those that act retrospectively and to the disadvantage of the offender. "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)

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In the final analysis, a law allowing courts to extend an order for protection for up to 50 years is not an ex post facto law even though courts can consider events that occurred before passage of the law because orders for protection are civil remedies, not criminal penalties.

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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).

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