The Supreme Court Renders Another Decision Interpreting the Ex Post Facto Clause That Makes It More Difficult to Incarcerate Sex Offenders: What the Ruling Means for Child Safety

Posted in: Criminal Law

The national drive to identify and punish child predators took a step backward this week.  While on its surface, the Supreme Court’s decision this week in Peugh v. United States does not deal with sex offenders, its impact will surely be felt in the sex-offender cases.  As with the Court’s decision ten years ago in Stogner v. California, the Ex Post Facto Clause has once again been interpreted to make it more difficult to incarcerate criminals, and particularly sex offenders, as I will explain below.

Peugh involved a defendant who was convicted and sentenced on bank fraud counts.  The defendant argued that his sentencing under the 2009 Federal Sentencing Guidelines, which were in effect at the time of sentencing, required a heavier sentence than the sentence he would have received at the time of the offense, which would have been governed by the 1998 Guidelines. Under the 1998 Guidelines, Peugh’s sentencing range would have been 30 to 37 months, but the 2009 Guidelines led to a range of 70 to 87 months, which was more than double the earlier calculation.  The District Court and the U.S. Court of Appeals for the Seventh Circuit rejected his Ex Post Facto arguments and sentenced him to 70 months, but the Supreme Court agreed with him that the Clause had been violated.  He won by a slim margin, with the Supreme Court ruling, 5-4, that the Ex Post Facto Clause precludes a sentence that is more severe than that which would have been likely to have been rendered at the time of the offense.

The Court split along its liberal and conservative divide, with Justice Kennedy, the typical swing vote, joining the majority and the liberals this time.  They held that there was an Ex Post Facto violation here.  The majority opinion was written by Justice Sotomayor, with Justices Kennedy, Ginsburg, Breyer, and Kagan joining.  (Justice Kennedy joined all but section III-C, which was not critical to the holding, but laid out a broad constitutional policy theory that the Ex Post Facto Clause stands for fairness.)  The five Justices in the majority agreed that it was substantially likely that the 2009 Sentencing Guidelines led to a lengthier sentence than the 1998 Guidelines, and, therefore, remanded the case for reconsideration of Peugh’s sentence.

While the decision and the dissent both delved into the factors found in Calder v. Bull and elsewhere, the majority’s rule boils down to the principle that a criminal defendant can only be subject to the law governing the substance of the crime and the sentence at the time of the offense, and that there is an Ex Post Facto Clause violation when there is a “substantial risk” that the sentence will be greater now than it was then.

The Peugh dissent was written by Justice Thomas and joined by Justices Roberts, Scalia, and Alito. The dissenters were not persuaded that the 2009 Guidelines required a lengthier sentence and they were correct in the sense that sentencing was discretionary to a degree in both eras.  They reasoned that the newer Guidelines did nothing more than make the sentence more accurate in terms of the original goal of sentencing for the particular crime.  They also emphasized the discretion that a District Judge could and should employ under either set of Guidelines.  In their eyes, the judge had discretion, at the time of the offense, and still has discretion today, and the Guidelines do no more than move a judge toward the sentence that would have been most appropriate anyway.  Thus, the dissenters would not have found an Ex Post Facto violation here.

The Peugh decision has special force in cases involving sex offenders, because the trend has been to increase prison terms for such crimes in recent years.

As state and federal legislatures have come to understand that many sex offenders are compulsive and, therefore, will be seriously dangerous long into the future, they have increased sentences for such offenses.  This development has occurred at the same time that state and federal governments have instituted sex-offender registries to allow the public to identify dangerous sex offenders, whether they are in prison or not.

With the Peugh decision, sex-offender sentences must be guided by the governing sentence at the time of the offense, rather than by the increased sentence that would be imposed today.  That means not only that there likely will be challenges by sex offenders to their sentences (which result in earlier release dates), but also that predators prosecuted in the future will be able to receive shorter sentences.  This development also likely will affect plea deals, making it easier for defendants to argue from a stronger position for shorter sentences, which then often translate into lighter charges.

The 2003 Ex Post Facto Decision in Stogner v. California

A decade earlier, the Supreme Court had interpreted the Ex Post Facto Clause to preclude the revival of a criminal statute of limitations for child sex abuse in Stogner.  The Court held there that in criminal cases, it is unconstitutional to revive the statute of limitations (SOL) after it had expired, based on the Ex Post Facto Clause, which only applies to criminal convictions.  California had enacted legislation that retroactively revived both criminal and civil SOLs.  Stogner solely addressed the criminal revival.  Numerous decisions since then have upheld such revivals in the civil context.

Again, the Court lined up with its liberals in the majority, and its conservatives in dissent.  At that time, though, the swing vote was Justice O’Connor.  Justice Breyer wrote the majority opinion, and Justices Stevens, O’Connor, Souter, and Ginsburg joined that opinion.  Justice Kennedy actually wrote the dissent, with Chief Justice Rehnquist and Justices Scalia, and Thomas joining.

Justice Kennedy found in Stogner that the revival of an SOL did not change the crime or punishment at the time of the offense.  He said, “A law which does not alter the definition of the crime but only revives prosecution does not make the crime ‘greater than it was, when committed.’ Until today, a plea in bar has not been thought to form any part of the definition of the offense.”

He was correct: the SOL is only a deadline, not an alteration of legal substance or punishment and, therefore, the majority’s reasoning that the Ex Post Facto Clause barred such a revival was ill-considered.  Kennedy’s movement from the dissent in Stogner to the majority in Peugh is explained by this distinction: he saw no change in substance or punishment in 2003 and ten years later in Peugh, he saw a change.  That is consistent.

The Stogner majority opinion was a major setback for victims of child sex abuse, because many states have had short SOLs and so many need decades to come forward. The result has been that they often miss the deadline for filing criminal charges.  The Stogner decision thus shut the door on millions of victims definitively.

Since then, a number of states have extended or eliminated their criminal SOLs, but no state, due to Stogner,  may revive an expired criminal SOL as California had.  The bottom line is that we cannot incarcerate many child predators and we can only do so for shorter terms than we now would think are appropriate.

For compulsive pedophiles, this is a tremendous benefit and for our society, it poses more challenges regarding the protection of children.  One thing is clear, though, if we are going to offer justice to millions of survivors, our only route is to revive their expired civil SOLs.  For many, that is the only route available.

There is a bonus when more civil claims are filed, which is that once a victim comes forward, others are likely to as well.  That means a victim from the past can lead the way in a civil suit for more recent victims who can now file criminal charges within statute.  That is what happened with the priests and monsignor in the Philadelphia Archdiocese, where the 2005 Grand Jury Report,

included not a single case that was in statute, but it led to the 2011 Grand Jury Report, which did.

The need for such legislation is underscored even more by the ruling in Peugh, because we are going to have dangerous pedophiles leaving prison earlier than had been anticipated.  Hopefully, they are on a reliable sex-offender registry so that the public knows of the danger they likely still pose, but, as we have learned, tracking predators through registries can be a challenge, and the announcement of a civil lawsuit is far more likely to get the public’s (and other victims’) attention.  Thus, more than ever, victims who have yet to come forward need to have a chance to file civil suits.  Their doing so will send a signal to the silent current or recent victims whose criminal SOLs have not yet expired.  In sum, the civil suit can trigger the prosecution needed to protect society from these repeat predators, and to protect children and provide them with justice.  Therefore, civil SOLs need to be enacted that permit revival of expired civil claims, as they have in numerous states, and both criminal and civil SOLs need to be eliminated.

That is the child protection lesson of the Supreme Court’s Ex Post Facto jurisprudence.

Posted in: Criminal Law

  • Carlos Carrillo

    The Application of the Ex Post Facto Clause in Peugh was accurate and we applaud this decision from the Supreme Court. Judges must apply the law which was in effect at the time of the crime.

  • skiadvocat

    Marci, read your article and the message is clear……….the criminal prosecution of childhood sexual offenders is becoming more difficult and less effective. The civil SOL reform is clearly the main avenue of redress and action for victims, families and the advocacy community.

    Thanks again, Marci and just remember, Patrick, who will by one year old in July, thanks you too.

  • Ty Quando

    Peugh did not change the law — it just reiterated the rule prohibiting ex post facto Iaws. Nothing has been made “harder” to prosecute. The prohibition against ex post facto laws has long been the rule in CA and every state. It is in the Constitution – Article I, Section 10, Clause 1. From this article, one can only conclude that Ms. Hamilton is opposed to this clause of the Constitution, since the Peugh case did nothing other than repeat its application. This is her right, but misleading people about the law by pretending something new and bad has happened is not what one expects from a law professor. Has she passed her article to the school’s constitutional law professor ? She could use a refresher.

  • R. Dernister

    Apparently Ms. Hamilton has a personal agenda that is in conflict with the U.S. Constitution. Her over-heated references to “dangerous pedophiles leaving prison” and her apparent belief that legislating new punishments, longer sentences, and registering offenders will somehow deter sex offenders is nothing more than magical thinking.

    • Aha

      Just lock them up in general population while in prison, and announce his/her crime! Problem solved. Sex offenders dont change, but their victims do. They are dangerous. They are disgusting pieces of shate. I’m sorry, maybe you don’t consider them to be dangerous to children? Why would that be?

      • samuelstorns

        You are one of the many ignorant Americans that still thinks sex offender means child molester when in fact they make up the minority on the list.

        Teens having consensual sex, misdemeanors, public urniators, streakers are all sex offenders too.

        I imagine your knowledge of politics and voting is on the same par. Thanks for helping ruin the country.

  • Juanita Roller

    Apparently the above article is one-sided and clearly biased. Any violation of ex post facto laws would essentially continue criminal repercussions for previous crimes, and finality would never attach. Sex offenders do pose a great risk to society, especially when lumped together rather than on a case-by-case basis. Sex offenders now face the harshest criminal and civil sanctions in American history, thereby making them an easy target for continued legislation. Keep in mind the Salem Witch Trials! The punishment should fit the crime, that is the crime that has been mandated at the time of sentencing. Thank GOD the author is in no position to represent my desires when it comes to enacting legislation.

    • lydiag

      The punishment should fit the crime? I’ve had PTSD for over forty years and I have it for the rest of my life. I’m the one that still wakes up with nightmares, decades later. Panic attacks, anxiety, agoraphobia, depression, APD, SAD…all of it. It took me until the age of 47 to understand and comprehend that sexual contact was my choice and no one else’s choice to make. I didn’t have to. I didn’t have to do as people asked, or expected, I didn’t have to out of fear of punishment, anger, reprisals. I didn’t have to out of guilt or because someone made me feel badly for simply saying “no”. Do you have any concept of what it’s like to be afraid, that afraid, to tell someone “no”? Then you clearly don’t understand the damage sex offenders do to their victims, the prison of fear they leave their victims with. 47 years of my life robbed from me, before I even understood I had the Goddamn choice to say no. Tell me what punishment would fit taking my quality of life from me? Criminal and civil sanctions are never harsh enough. How many times do I see a man get one year in prison for raping a child? How many sex offenders never spend a day in jail, because of the length of time it takes for victims to come forward? I came forward to my friends over thirty years ago. I was screamed at, called a liar, taunted, ostracized. Now, my government wants to tell me it’s too late, I should have reported it sooner. Had any one of my friends encouraged me to go to the police or speak to a counselor, I wouldn’t have lost my right to justice.

    • Cheryl Williams

      This was posted by a sex offender, that plead guilty to said crime and served several years in prison, under the guise of his mother’s name. Sex offenders are not innocent and therefore should not be lumped into a group such as Salem witches, ridiculous metaphor to say the least!

  • Damien Thorn

    I’m in Illinois where the sex offender registry law implies that if a Ex-sex offender who completes his sex offender registration and is taking off the state sex offender database; he or she can be place back on the sex offender list after being convicted of any new non-sex offense felony…..and if your previous sex offense that only required a 10 year registration under the old law now requires a lifetime registration under the new law, that person now has to register for life.

    If that scheme of law doesn’t volate the ex post facto law I don’t know what does.

    • lydiag

      Cry me a river. Easy answer to that, is simply not to be a sex offender in the first place.

  • Lance Mitaro

    Megan’s law is built upon the foundation of an emotional and preemptive pretext: [That knowing where someone lives is potentially life-saving knowledge]. This, in turn, is a specious argument at best and intellectually dishonest at worst because knowledge doesn’t always equate to “awareness” which effectively does NOT guarantee prevention. It’s an exercise in futility to believe otherwise.

    The registry doesn’t not give parents their “power back.”

    The registry is not the gold standard, nor “first line of defense” for protecting children.

    The registry does not minimize risk, nor does it err on the side of safety. It disseminates a forced and biased perspective of pseudo culpability.

    The registry fails across the board because it’s an anticipatory witch hunt

    Children are 100 times more likely to be killed by a police officer than be accosted by a sex offender in the USA.

    The registry gives false peace of mind to parents. End of story.

    • lydiag

      Really? “Children are 100 times more likely to be killed by a police officer than accosted by a sex offender in the U.S.” Obviously you and I have walked far different paths in life, and those affected by sex offenders. Raped by a babysitter at the age of four. Sexually abused by an older brother in the 3rd grade. Sexually abused by a step-father in Jr. High. Raped in high school. Raped twice in my mid-twenties. Yet, here I am still living, and a police officer hasn’t killed me, yet at least. I must be one in a million rare cases, according to your logic. The truth is 1 in 3 girls and 1 in 6 boys are sexually abused before the age of 18. When I was in the 2nd grade, my friend and I were playing in a fountain, and a man came up and groped her, in daylight, with many people walking by. It happens more often than you know.

  • Laurie Rose Kepros

    Several assertions in this piece are in conflict with overwhelming social science research. Most individuals convicted of sex crimes are not “compulsive” and only a tiny percentage (experts have thrown out numbers in the 1-5% range) meet diagnostic criteria for pedophilia. In an article called “Does a Watched Pot Boil,” researchers in NY found that, of those arrested for a sex crime, only 10% had any prior sexual criminal history. In reality, most sexual offending is not reported and is going on within the homes and communities of private citizens. “Lock ’em up” zealotry and scarlet letters are not empowering victims to report these crimes but making them feel like it’s not even an option in reality, especially when that “offender” is their relative or family friend. Studies of tens of thousands of prisoners have found that incarceration does nothing to reduce recidivism and, if anything, only destabilizes people making them *higher* risk upon release. In a 2006 study in WA, researchers found that imposing jail as condition of sex offense probation increased the risk of sexual recidivism by 900% compared to defendants who received sex offense probation alone. Moreover, treating “all sex offenders” (which cover a dynamic range of conduct and severity) the same violates the core correctional principles (supported by almost 25 yrs of consistent research findings) of risk-need-responsivity which studies have shown (including studies on sexual offenders) mandates interventions proportionate to risk. If a low risk person gets a “high risk” intervention, their risk actually increases. Interestingly, as a group, “convicted sex offenders” over age 50 have a risk of sexual reoffense of approximately 2%, which is a rate comparable to the general population who have never been arrested for a sex crime. And those “high risk” defendants who live in the community for 10 years without sexually reoffending also become low risk (2%) too. It is really unfortunate that rather than advocating for increased resources for victims and educating our children and communities, we see people advocating for spending insane amounts of money ineffectually locking up individuals only to have them return to our communities “worse” based on arbitrary guidelines. The same can be said for the registry which research has uniformly shown to be, at best, completely useless at reducing sexual offending and, at worst, contributing to increased rates of sexual offense by destabilizing (stripping away key protective factors like housing, employment, and social support) and ostracizing defendants, increasing their dynamic risk factors. As a country, we cannot incarcerate our way out of our problems.

  • suchasillyartcile

    “As state and federal legislatures have come to understand that many sex offenders are compulsive and, therefore, will be seriously dangerous long into the future, they have increased sentences for such offenses. ”

    which is a total myth but thank you for playing

    sex offenders have the lowest % of recidivism of almost all crimes

  • daniel.sanchez

    just reading this jaded article. i fear for our kids. as long as we are obsessed with the strangers on a registry, then we will never be able to protect or prevent future abuse. Most abuse happens in the home or with someone the child knows. It must be hard for Marci Hamilton to believe that, but that is what the research shows. Ex Post Facto is a cornerstone of our Constitution. To begin making any exceptions is simply not an option. Surprising that Chair at a Law School would so easily dismiss the Constitution in order to serve her own purpose. And a misguided purpose at that: most abuse happens in the home. Registries distract us from that hard truth and do nothing but heap on shame to people who have already served their sentence, and it was probably shame that caused them to commit the crime in the first place. Registries perpetuate the problem, not solve it and making Constitutional exceptions for registered persons is the WORST thing we could do. I wonder if Paul R. Verkuil was for changing the Constitution?? IDIOT!