Ex post facto headaches from any legislative response to Booker
Who can resist blogging during the Super Bowl halftime (with Paul McCartney in the background and no wardrobe malfunctions in sight)? In honor of Super Booker Sunday, I can now finish up a post I started this morning about ex post football, … err, I mean ex post facto.
In my testimony in November to the US Sentencing Commission, I expressed concern that any legislative response to Booker “risks sowing greater confusion and uncertainty — and lots and lots of litigation — about applicable federal sentencing laws and practices.” At the time, and still today, my concerns center around ex post facto litigation headaches if “the Bowman fix” (aka topless guidelines) is enacted and seeks to be immediately applied as a response to Booker.
After speaking to many smart folks about the ex post facto implications of the Bowman fix, I concluded that no one is really sure how to tackle the issue. Consequently, I asked my smart research assistant to do a memo for me on the topic. Proving how smart I am to hire such smart help, my RA’s memo, which can be downloaded below, does a masterful job sorting through these issues. In addition to spotlighting many key ex post facto issues, the memo serves as an important reminder that any effort to apply a post-Booker legislative fix immediately risks producing another wave of confusing litigation.