Category Archives: ex post facto

Miller v. Florida

482 U. S. 423

June 9, 1987

Florida guidelines recommended a 3 1/2 to 4 1/2 year imprisonment for a certain crime. Judges could sentence above or below those bounds, but only if they wrote a judicially reviewable explanation. The guidelines were later revised to make the recommendation 5 1/2 to 7 years. Miller committed the offense before the guideline change, but was convicted and sentenced afterward. He was given the full 7 years under the new guidelines. Miller argued that this violated the ex post facto clause of the Constitution.

O’Connor wrote for a unanimous Court. She demonstrate that the case was largely controlled by precedents. Increasing the time of a sentence was a classic ex post facto violation, and that the guidelines were somewhat discretionary did not matter. While Miller could still have been given a 7 year sentence under the old guidelines, the change still worked to his disadvantage by altering the baseline, and relieving the judge of the duty to justify such a sentence in writing. Lower courts had found that changes in parole guidelines were not ex post facto violations, but O’Connor distinguished those rulings – the parole guidelines did not have the force of law like the Florida guidelines, and they did not require written justification for deviations from them.

While I’m not ready to say that O’Connor was wrong, this is a case that cries out for a dissent. The precedents she cites look strong, but her attempts to distinguish the federal parole guidelines were somewhat less than convincing. More than anything, the case just seems wasteful; on remand, my hunch is that the judge gave him seven years again – this time with written explanation.

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