Other Constitutional Rulings
A. Commerce Clause
B. Art. 1, § 10, Ex Post Facto Clause
C. First Amendment
D. Eighth Amendment
E. Miscellaneous Constitution Rulings
Sixth Circuit
Art. 1, § 10, Ex Post Facto Clause
• Art. 1, § 10 - Ex Post FactoDyer v. Bowlen, 04-5478 (8/30/06)
> Defendant as convicted in 1975 for murder and grand larceny and sentenced to death. His sentence was commuted to life on appeal because Tennessee’s death penalty was declared unconstitutional. Prior to defendant’s second parole hearing in 1998, Tennessee amended its parole statute to provide discretion to the parole board in denying parole, when certain criteria were met. This amendment changed the language which had previously required the parole commission to grant parole to a defendant when the criteria were met. Defendant filed a federal habeas petition arguing that the application of the amended parole statute violated his rights under the Ex Post Facto Clause. The district court denied the petition and defendant appealed.
* Holding: In order to prove an ex post facto violation, a defendant must show that a law (1) applies to events occurring before its enactment, and (2) disadvantages the defendant. The Supreme Court in Garner v. Jones held that retroactive application of a parole provision may violate the Ex Post Facto Clause if such application creates a “sufficient risk” of increasing the measure of punishment. In the case, the court found that the record was insufficiently developed in order to determine whether defendant actually faced a sufficient risk that his parole was denied based upon the amended parole provision. Thus, the court remanded the case with instructions to permit defendant to conduct discovery. Specifically, defendant was permitted to gather data evidencing the practical implementation of the amended parole provisions pertaining to inmates with comparable convictions and sentences.
• Ex Post Facto/Due Process
U.S. v. Barton, 05-1229 (8/3/06)
> Defendant was convicted of three bank robberies and Booker was decided prior to his sentencing. At the sentencing hearing, the district court exercised its discretion under Booker to impose a sentence that was 43 months higher than the top end of the guideline range. On appeal, defendant challenged application of the Booker decision at his sentencing based upon the Due Process and Ex Post Facto Clauses.
* Holding: The court held that application of Booker to defendant’s sentence, where the underlying conduct was committed pre-Booker, violated neither the Due Process nor the Ex Post Facto Clauses. Additionally, the court found that the above-guideline sentence was reasonable. Accordingly, the court affirmed the sentence.
• Art. I, § 10 - Ex Post Facto
Michael v. Ghee, 06-3595 (8/10/07)
> In 1996, the State of Ohio abolished its parole system in favor of a revised sentencing scheme. In 1998, the parole authority adopted guidelines for dealing with persons still on parole under the old system. Defendant inmates subsequently brought an action under 42 USC § 1983 claiming that implementation of the 1998 guidelines violated the Ex Post Facto Clause. The district court granted summary judgment to the parole authority. Defendants appealed.
* Holding: The court held that, after the Supreme Court decision in Garner v. Jones, the standard to be applied in the Sixth Circuit in order to determine whether retroactive application of a law or guideline violated ex post facto is whether the new law or guideline creates a “sufficient risk of increasing the measure of punishment attached to the covered crimes.” The court ruled that this standard may be met in one of two ways: (1) the guidelines, on their face, show a significant risk of increased incarceration; or (2) application of the guideline, based upon the practical implication of it, will result in a longer period of incarceration than under the earlier guideline. In the case, the court held that the defendant inmates had not shown a sufficient risk that the 1998 parole guidelines, either on their face or in application, would increase their punishment. Accordingly, the district court ruling was affirmed.
• Ex Post Facto
Doe v. Bredesen, 06-6393 (11/16/07)
> Defendant was convicted in Tennessee state court of attempted kidnaping and sexual battery. The Tennessee Legislature subsequently passed a new sex offender act which reclassified defendant as a “violent sexual offender” and subjected him to lifetime supervision and GPS tracking. Defendant filed a civil action in the district court alleging that application of the law to him violated the Ex Post Facto Clause. The district court dismissed the complaint and defendant appealed.
* Holding: The Ex Post Facto Clause is violated where a new law punishes a defendant for acts committed before the effective date. A law is not considered to be punishment where it produces an “ambiguous sort of disadvantage”; rather, the law must either alter the definition of criminal conduct or increase the penalty for a crime. In determining whether a law imposes punishment, the court looks first to legislative intent. In the case, the court found that the legislature specifically stated that the new sex offender act was non-punitive, and not intended to inflict retribution or additional punishment.
After considering legislative intent, the court must also analyze the practical effect of the law. This requires consideration of the following factors: (1) whether the regulatory scheme has traditionally been regarded as punishment; (2) whether the law imposes an affirmative disability or restraint; (3) whether it promotes the traditional aims of punishment; (4) whether it has a rational connection to a non-punitive purpose; and (5) whether it is excessive with regard to purpose. In considering the factors, the court ruled that the practical effect of the law was not to impose punishment upon a defendant. Accordingly, the court found no ex post facto violation and the district court ruling was affirmed.
• Ex Post Facto Clause
U.S. v. Elson, 07-3778 (8/21/09)
> Defendant was an attorney convicted of conspiracy to obstruct a grand jury investigation for his activities in assisting a client to hide assets from creditors and his wife. At sentencing, defendant claimed that the Mandatory Victims Restitution Act (MVRA) was inapplicable to him because it was enacted in 1996, but the loss caused by his relevant criminal activity occurred in 1995. The district court disagreed, found no ex post facto violation, and ordered defendant to pay $2.5 million in restitution. Defendant appealed.
* Holding: Relying on prior precedent, the court first held that a restitution order constitutes punishment for purposes of the Ex Post Facto Clause. Nonetheless, the court ruled that the MVRA was applicable to defendant because the conspiracy for which he was convicted extended well past 1996 and into 2000. Accordingly, the restitution order was affirmed.
• Ex Post Facto - Guideline Amendments
U.S. v. Duane, 06-6536 (7/17/08)
> Defendant was convicted of receiving child pornography (occurring before 11/1/05) and possessing child pornography (occurring after 11/1/05). At sentencing, the district court applied the 11/1/05 guideline manual (which imposed higher penalties) to the guideline calculation for all of the offenses. Defendant appealed and argued that application of the 2005 guideline manual to the receiving offense violated the Ex Post Facto Clause.
* Holding: USSG § 1B1.11(b)(3) requires that, where a defendant is convicted of offenses both before and after a guideline amendment, the guideline amendment is to be applied to both offenses. Thus, the court addressed two issues in its decision: (1) whether a retroactive change to the guideline could, after Booker, affect the Ex Post Facto Clause at all; and (2) whether application of § 1B1.11(b)(3) violated the Ex Post Facto Clause. Regarding the first issue, the court “assumed arguendo” that a retroactive change to the guidelines could implicate the Ex Post Facto Clause. This conclusion was based upon it interpretation of Supreme Court precedent that “guidelines that affect discretion, rather than mandate outcomes,” are subject to ex post facto scrutiny.
Regarding § 1B1.11(b)(3), the court found no ex post facto violation where a defendant is convicted of offenses both before and after a guideline amendment. In the case, the court reasoned that defendant was on notice, pursuant to § 1B1.11(b)(3) and the grouping rules of the guidelines, that his continued possession of child pornography after the 2005 guideline amendment would subject all of his child pornography offenses to such amendment. Thus, application of the 2005 guidelines to all of his offenses did not violate the ex post facto clause.