In United States v. Booker, a dramatic decision handed down in early 2005, the Supreme Court attempted to cure Sixth Amendment issues by excising the mandatory provisions of the U.S. Sentencing Guidelines and changing the binding role of the Guidelines to advisory. For close to twenty years, federal circuit courts had used the Ex Post Facto Clause to prohibit sentencing judges from retroactively applying revisions of the federal Guidelines. However, after Booker's advisory mandate and the Guidelines' supposed loss of force in sentencing decisions, some circuits have now found that the same retroactive application no longer violates the Ex Post Facto Clause. This article argues that, despite these early-occurring precedents, courts need to continue applying the Ex Post Facto Clause to the revisions of the now-advisory Guidelines. Applying the Guideline revisions to defendants who committed their crimes prior to the date the revisions become effective is still retroactive and substantially disadvantages such defendants. Moreover, the national trend since Booker indicates that the Guidelines continue to have the force and effect of law, create high hurdles for judicial discretion, and directly and adversely affect the sentence a defendant receives.
Christine M. Zievel,
Ex-Post-Booker: Retroactive Application of Federal Sentencing Guidelines,
Chi.-Kent L. Rev.
Available at: https://scholarship.kentlaw.iit.edu/cklawreview/vol83/iss1/17