The United States Constitution protects citizens from ex post facto laws. What this means is that a person cannot be punished for breaking a law that was not a law when they committed the act. This will be true even when the act becomes against the law after they committed it. As a Massachusetts criminal defense attorney, a question will often arise if the ex post facto protection applies to punishment guidelines that change after the defendant has committed the crime. The Supreme Court of the United States recently addressed this question in Peugh v. United States ruling that the sentencing guidelines in place at the time of the crime should be used even if they subsequently change.

The defendant in Peugh v. United States was convicted in federal court on five counts of bank fraud which occurred in 1999 and 2000. While sentencing the defendant, the judge used sentencing guidelines that were created in 2009; almost 10 years after Peugh had committed his crimes. The defendant argued that because these guidelines were not regulated when he committed his crime, it violated the ex post facto law in using them in sentencing.

In a 5-4 decision, the Supreme Court agreed with Peugh and ruled this was a violation of his constitutional rights. Punishment guidelines are often changing and becoming harsher and this decision shows that sentencing guidelines that were in effect at the time of the offense will be used when sentencing the defendant. The court focused on the fact that while punishment guidelines are not “laws” a judge will use the sentencing guidelines in over 80% of sentences. Because of this, a defendant will be subjected to a significant risk of a higher sentence because of these new guidelines. This is exactly what the constitution is trying to protect with the ex post facto rule.

The four dissenting judges focused on how these guidelines are not rules and therefore should not be subjected to ex post facto. They stated that ex post facto is limited to laws, and sentencing guidelines are not laws. In their opinion, a judge does not have to follow any of these guidelines, so the new sentencing guidelines is not subjecting a defendant to anything more severe than they were facing before. Overall this opinion did not win and sentencing guidelines will not be protected under ex post facto laws.

The ex post facto clause of the Constitution was enacted in order to ensure that all people charged with a crime were aware of the potential consequences of their actions. Not allowing sentencing guidelines to be part of ex post facto would go against what the clause stands for. Without knowledge of the more severe punishment that may be enforced now, this would put a defendant at a severe disadvantage. This would allow courts to sentence defendants severely for a crime that was not considered severe when committed. This case solidifies that the court system will look at all the circumstances and laws of a crime at the time of the offense and not take any new legislation or guidelines into account.