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					To:        Professor Berman
From:      David Johnson
Date:      February 4, 2005
Re:        Ex Post Facto concerns about a Congressional response to Booker/Fanfan

                                             QUESTION PRESENTED

       If Congress reacts to the Supreme Court’s decision in United States v. Booker, 125 S.Ct.
738 (2005) by enacting the “Bowman proposal,” will retroactive application of this legislative
change violate the Constitution’s prohibition of Ex Post Facto laws?1

                                                  BRIEF ANSWER

        Yes, retroactively enacting the Bowman proposal would likely violate the Constitution’s
prohibition on Ex Post Facto laws. While the proposal would not necessarily increase the
sentence given to a defendant, the potential for disadvantaging a defendant is enough to
constitute a violation of the constitution. Moreover, by raising the top of the Guideline range,
the Bowman proposal poses a sufficient risk that an offender will receive an enhanced sentence.
Both Supreme Court precedent and past actions taken by the Department of Justice support this

                                              SUMMARY OF FACTS

        In United States v. Booker, the Supreme Court held that the Federal Sentencing
Guidelines, as traditionally applied, violated a defendant’s Sixth Amendment right to a jury trial.
Booker, 125 S.Ct. at 745. In a separately written remedial opinion, the Court resolved the
constitutional infirmary by excising two statutory provisions from the Sentencing Reform Act:2
1) the provision that makes the Guidelines mandatory, and 2) the provision articulating the
standard for appellate review of sentences. Booker, 125 S.Ct. at 764. Consequently, the
Guidelines are now merely advisory (instead of mandatory), and an appellate court must review
sentences for reasonableness (instead of de novo review). When sentencing, a judge must still
“consult those Guidelines and take them into account” while also considering the other statutory
goals of sentencing. Booker, 125 S.Ct. at 764, 767.

        In articulating the Court’s remedy, Justice Breyer prudently noticed that “[t]he ball now
lies in Congress’ court. The National Legislature is equipped to devise and install, long-term, the
sentencing system, compatible with the Constitution, that Congress judges best for the federal
system of justice.” Booker, 125 S.Ct. at 768. For the purpose of this memo, I will assume that
Congress enacts the so-called “Bowman proposal.”3 See Memorandum from Frank Bowman, to

 Two Ex Post Facto Clauses appear in the U.S. Constitution. The first limits the power of Congress. See U.S.
Const. art. I, § 9, cl. 3. The second limits the power of the states. See U.S. Const. art. I, § 10, cl. 1.
    Pub. L. 98-473, Title II, §§ 211-238, 98 Stat. 1987 (1984).
  The “Bowman proposal” gains its name from Professor Frank Bowman. Early after the Supreme Court’s decision
in Blakely v. Washington, 124 S. Ct. 2531 (2004), Professor Bowman sent the United States Sentencing Commission
U.S. Sentencing Commission (June 17, 2004) & (July 16, 2004) [respectively hereinafter
“Bowman Memo I” & “Bowman Memo II”]. Under this plan, Congress would reinstate the
mandatory application of the Guidelines, but would also “increase the top of each guideline
range to the statutory maximum of the offense(s) of conviction.” Bowman Memo I at 7
(emphasis original). In effect, the Guidelines would become top-less; the upper bounds of a
defendant’s sentence would be limited only by the statutory maximum set by Congress.


                              I. Introduction to Ex Post Facto Doctrine

        According to Professor Bowman, as of July 16, 2004 the legislative fix being
contemplated by Congress “would make the bill applicable to all sentencings [sic] occurring on
or after its effective date.” Bowman Memo II at 8. Enacting the Bowman proposal and applying
the change retroactively to offenders who committed their offense prior to the legislative change
will naturally incite Ex Post Facto concerns. In beginning to analyze any Ex Post Facto issue,
one must always start with the classic case Calder v. Bull, 3 U.S. 386 (1798).

       In Calder, the Court laid the foundation for Ex Post Facto analysis and concluded that the
prohibition only applies to criminal laws in four contexts:

        1st. Every law that makes an action, done before the passing of the law, and which was
        innocent when done, criminal; and punishes such action. 2nd. Every law that aggravates a
        crime, or makes it greater than it was, when committed. 3rd. Every law that changes the
        punishment, and inflicts a greater punishment, than the law annexed to the crime, when
        committed. 4th. Every law that alters the legal rules of evidence, and receives less, or
        different, testimony, than the law required at the time of the commission of the offense, in
        order to convict the offender.

Calder, 3 U.S. at 390 (emphasis added). The third enumerated category of prohibited Ex Post
Facto laws may be implicated by the retroactive application of the Bowman proposal. Affirming
this, the Court has more recently articulated that the “best knowledge of the original
understanding of the Ex Post Facto Clause” was that “[l]egislatures may not retroactively alter
the definition of crimes or increase the punishment for criminal acts.” Collins v. Youngblood,
497 U.S. 37, 43 (1990). Because the Bowman proposal may “increase the punishment for
criminal acts,” Ex Post Facto concerns must be analyzed.

        The central concern of the Ex Post Facto Clause is fair warning to offenders. When
Congress increases punishment beyond what was in effect at the time the crime was committed –
which is exactly what the Bowman proposal does – defendants are not given fair warning that
they are subject to such punishment. Weaver v. Graham, 450 U.S. 24, 30 (1981). In fact,
“circuits unanimously agree that the Ex Post Facto Clause of the Constitution prohibits
application of a revised guideline when the version in effect on the date of the defendant's
sentencing imposes a more severe penalty than the version in effect on the date of his offense.”

two memoranda detailing a proposal to make the Federal Sentencing Guidelines compatible with the Sixth
United States v. Schnell, 982 F.2d 216, 218 (7th Cir. 1992) (citing cases therein). In addition to
unanimous agreement by the Circuit Courts, Supreme Court precedent also strongly supports this
conclusion. See Miller v. Florida, 482 U.S. 423 (1987). In a sentencing scheme nearly identical
to the federal system, the Court found a violation of the Ex Post Facto Clause when a revised
sentencing guideline was applied to a defendant. Id. at 433, 435-36. The revised state sentencing
guideline increased the presumptive sentencing range, and the defendant’s crime occurred before
the statue’s effective date. Id. at 427-28.

       Despite this precedent, and after “a provisional ex post facto analysis,” Professor
Bowman has concluded that retroactive application of his proposal would not violate the Ex Post
Facto Clause. See Bowman Memo II at 8. It should first be noted, however, that this third
Calder category of Ex Post Facto laws “constitute by far the largest category of ex post facto
challenges” and is the most difficult to analyze. Harold J. Krent, The Puzzling Boundary
Between Criminal and Civil Retroactive Lawmaking, 84 GEO. L.J. 2143, 2162 (1996). To
determine if Professor Bowman’s initial reaction is correct, analysis of the Court’s developing
Ex Post Facto jurisprudence is necessary.

                       II. The Developing Ex Post Facto Jurisprudence

         Professor Bowman is correct when he explains that “[t]he Ex Post Facto Clause does not
prohibit application of all after-enacted legislation to defendants who committed their offenses
before the legislation. The Clause only prohibits application of laws that disadvantage a
defendant in comparison to the law in effect at the time of the crime.” Bowman Memo II at 8
(emphasis added). Accord Weaver, 450 U.S. at 29 (“[I]t must disadvantage the offender affected
by it"); Collins, 497 U.S. at 41 (“the constitutional prohibition on ex post facto laws applies only
to penal statutes which disadvantage the offender affected by them”). In fact, the Federal
Sentencing Guidelines reflect the accuracy of this statement. See U.S.S.G. § 1B1.11(b)(1).
Professor Bowman, believes that “so long as the judge imposed a sentence within the current
guideline range, i.e., did not impose a sentence which under current law would represent an
upward departure, the defendant would have no ground of complaint. The new law would not
disadvantage him. . . .” Bowman Memo II at 9. As a result, it is argued that retroactive
application of the proposal would not violate the Ex Post Facto Clause.

       Under the Bowman proposal, the amount of punishment a defendant can – but is not
required to – receive is significantly increased. Whether or not this alone constitutes an Ex Post
Facto violation is debatable. To answer this question, Supreme Court precedent requires us to
examine two issues.

       1)         Does the Bowman proposal constitute a disadvantage to the defendant? See,
                  e.g., Weaver, 450 U.S. at 29; Collins, 497 U.S. at 41; Lynce v. Mathis, 519 U.S.
                  433, 441 (1997) (“The narrow issue that we must decide is thus whether those
                  consequences disadvantaged petitioner by increasing his punishment.”).

       2)         Does the Bowman proposal “produce[] a sufficient risk of increasing the
                  measure of punishment attached to the covered crime?” California Dept. of
                  Corrections v. Morales, 514 U.S. 499, 509 (1995).
           A. The changing and sometimes inconsistent Ex Post Facto precedent

        Early in the twentieth century, the mere possibility that a defendant could receive a
higher sentence after a statutory revision was enough “disadvantage” to invoke the Ex Post Facto
prohibition. See Lindsey v. Washington, 301 U.S. 397, 401 (1937) (“[T]he ex post facto clause
looks to the standard of punishment prescribed by a statute, rather than to the sentence actually
imposed. . . . It is for this reason that an increase in the possible penalty is ex post facto
regardless of the length of the sentence actually imposed, since the measure of punishment
prescribed by the later statute is more severe than that of the earlier.”) (citations omitted).
Through multiple cases, the Court continued this tradition of broadly interpreting the Ex Post
Facto Clause. The Court consistently found retroactive legislative changes that impermissibly
increased a defendant’s punishment. See, e.g., Weaver, 450 U.S. at 35-36 (holding that a new
statute constricting an inmate’s ability to earn early release credits made punishment
unconstitutionally “more onerous.”); Miller, 482 U.S. at 433-34 (holding that an increase in
“quantum of punishment” was unconstitutional). Clearly, under Lindsey, retroactive application
of the Bowman proposal would violate the Ex Post Facto Clause. Furthermore, given this
skepticism to legislative changes that increase punishment, retroactive application of the
Bowman proposal is on shaky constitutional grounds.

        While the Court has never overruled Lindsey or other Ex Post Facto holdings, it has
limited the Clause’s scope. Prior to becoming Chief Justice, Justice Rehnquist suggested that the
Court compare the previous statute to the new statute and analyze the “total package.” Weaver,
450 U.S. at 28 (Rehnquist, J., concurring). This “in toto” approach of comparing statues “has
become a hallmark of the more recent cases” in the Court’s Ex Post Facto jurisprudence. Bryan
R. Diederich, Notes, Risking Retroactive Punishment: Modifications of the Supervised Release
Statute and the Ex Post Facto Prohibition, 99 COLUM. L. REV. 1551, 1569 (1999). However, the
“in toto” approach is usually only applicably when the new statute contains some type of
“ameliorative” effect, such as providing the defendant with greater protections. Cf. Weaver, 450
U.S at 38-39 (Rehnquist, J., concurring) (explaining that the availability of greater “gain time”
that may be given by the Parole Board may negate the disadvantage to the defendant).

       In addition, the question of disadvantaging a defendant was once central to the issue of
Ex Post Facto questions. See supra. The Court has signaled, however, that such an analysis is
not necessary and should be avoided. See Morales, 514 U.S. at 506, n.3 (describing the word
“disadvantage” as “unnecessary” and “inconsistent” with recent Ex Post Facto framework).
Instead, the main question must focus on the “risk” a legislative change creates at extending any
prisoner’s actual period of confinement. Id. at 509, 512, 513. Nevertheless, in a seemingly
schizophrenic move, a mere two years after Morales, the Court reiterates the disadvantage
requirement for an Ex Post Facto violation. See Lynce, 519 U.S. at 441.

                            B. Applying precedent to the proposal

       Because the Bowman proposal would “add new rigors to the punishment of old
offenses,” retroactive application of the change would likely violate the Ex Post Facto Clause.
See William P. Wade, A Treatise on the Operation and Construction of Retroactive Laws, as
Affected by Constitutional Limitations and Judicial Interpretations § 273, at 318-19. For four
reasons, both Court precedent and even the Department of Justice have supported this argument.

        First, the Bowman proposal would disadvantage a defendant. Just as in Lindsey, Weaver,
and Miller, both the purpose and effect of the Bowman proposal are to enhance the range of
available prison terms. Through various cases, the Court has affirmed that when the range of
available prison terms is legislatively enhanced, the change cannot be applied retroactively. See
Morales, 514 U.S. at 507-508. In attempting to distinguish these cases, and therefore to not find
an Ex Post Facto violation, the Morales Court explains that all three of those cases involved
“changing the sentencing range applicable to covered crimes.” Id. at 508. The Bowman
proposal changes the sentencing range applicable to an offender’s crime, and therefore may not
be applied retroactively. Moreover, it does so without any ameliorative affect. C.f. Miller, 482
U.S. at 432 (“[No] feature of the revised guideline law . . . could be considered ameliorative.”).
That is, increasing the top of the Guideline range is done without any corresponding procedural
or substantive benefit to the defendant.

        Second, even if the a sentencing judge does impose a sentence within the normal
sentencing range, an Ex Post Facto violation would still occur. “[T]he ex post facto clause looks
to the standard of punishment prescribed by a statute, rather than to the sentence actually
imposed.” Lindsey 301 U.S. at 401. Moreover, for a defendant who committed his crime Post-
Booker and Pre-Bowman fix, the Court would have to decide if the Bowman fix disadvantages a
defendant compared to unlimited advisory guidelines. While such a defendant would not be
exposed to increased punishment, “removal of the possibility of a sentence of less than [the
guideline’s range floor] . . . operates to their detriment in the sense that the standard of
punishment adopted by the new statute is more onerous than that of the old.” Id. It is important
to note that the Court continues to cite Lindsay as good law and is must continue to distinguish
the case when an Ex Post Facto Clause violation is not found. See Morales, 514 U.S. at 505.

        Third, if the Court does not engage in a “disadvantage” analysis (as suggested by the
Morales Court), the Bowman proposal would produce “a sufficient risk of increasing the
measure of punishment” available to a defendant. Retroactive application of the legislative
change would therefore be unconstitutional. Id. at 509. The Court has never articulated a single
“formula” to determine what type of change would have an unconstitutional effect on
punishment. Id. The Court does explain that “innocuous adjustments”4 may be applied
retroactively. In addition, other changes that “create[] only the most speculative and attenuated
possibility of producing the prohibited effect of increasing the measure of punishment” may also
be applied retroactively. Id.; c.f. Dobbert v. Florida, 432 U.S. 282, 294 (1977) (“[P]etitioner's
speculation that the jury would have recommended life were the prior procedure in effect is not
compelling” especially because the new procedure was enacted to afford greater Constitutional

       As explained by Morales, The Bowman proposal cannot be characterized as a “most
speculative” or “attenuated” risk at increased punishment. The Court found the Morales change

 As examples of this type of change, the Court enumerates, inter alia: “changes to the membership of the Board of
Prison Terms, restrictions on the hours that the prison law library, reduction in the duration of the parole hearing. . .”
Morales, 514 U.S. at 508.
to be speculative because: 1) the change only applied to a class of narrow class of offenders who
would almost never benefit from the old rule, 2) the change was carefully tailored, 3) if particular
circumstances exist, an exception to the new rule may be made. Morales, 514 U.S. at 510-11.
Given these particularized aspects of the new rule, the Court concludes that an offender “cannot
reasonably expect that” enhanced punishment will result. Id. Such characteristics, however, are
not present under the Bowman proposal. The Bowman proposal would apply to every defendant
without restriction. In fact, for defendants who committed their offense prior to Booker, the
post-Booker sentencing world has shown that their risk of increased sentences is certainly not
“most speculative” or “attenuated.” See Increased sentences post-Booker, at

       Finally, through its past practices, the Department of Justice has seemingly endorsed the
argument that retroactively increasing the top of a sentencing range would be enough to violate
the Ex Post Facto Clause. As one commentator has confirmed: “The Department of Justice has
opined that, under the Ex Post Facto bar in the Constitution, where the Sarbanes-Oxley Act
increases the punishment for existing crimes, those increases penalties will only apply to
criminal conduct committed after the effective date of the Act.” Julie R. O’Sullivan, FEDERAL
WHITE COLLAR CRIME 496 (2d. ed., 2003) (citing Memorandum for the Director, FBI, et. al.,
from the U.S. Attorney General Re: Implementation of the Sarbanes-Oxley Act). Because the
Sarbanes-Oxley Act amended only the maximum penalty available for committing certain
offenses, an Ex Post Facto analogy may be drawn to amending the maximum penalty available
under the Federal Sentencing Guidelines.


        Given the Supreme Court’s Ex Post Facto jurisprudence, there are constitutional concerns
about retroactively implementing the Bowman proposal. The Bowman proposal would
disadvantage defendants who committed their offense prior to Booker by subjecting the offender
to higher punishments. As explained by the Supreme Court and shown through recent history,
the risk of enhanced punishment for such offenders is sufficient and is not merely speculative.
Likewise, the Bowman proposal would disadvantage defendants who committed their offense
post-Booker by eliminating the lower punishments available in an advisory Guideline system.
The Court has embraced this argument in the past. This possibility, again, is not sufficient and
should not be described as most speculative. While the issue of what constitutes an Ex Post
Facto violation is often a difficult one (especially for laws falling within the third category of
Calder), retroactive application of the Bowman proposal will likely violate the Constitution’s
prohibition on Ex Post Facto laws.

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