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.