The Ramifications of Peugh

By Tommy Walker

I. Peugh v. United States, (No. 12-62)(S. Ct. June 10, 2013)

Recently, the United States Supreme Court decided Peugh referenced above. At first blush it may not seem to have been a decision which would have significant impact with many defendants. However, upon closer review, the ramifications of Peugh are a lot more subtle, and therefore, Tommy Walker and his assistants have given us a more in-depth review. Peugh may also be the forerunner of the upcoming Alleyne case.

In Peugh, the United States Supreme Court held that sentencing a defendant under a version of the U.S. Sentencing Guidelines that was promulgated after he committed his crime and increased the applicable range of the incarceration violates the Ex Post Facto Clause.

The Supreme Court defined the ex post facto clause as: (1) every law that makes an action done before the passing of the law, and which was innocent when done, criminal; and punishes such action; (2) every law that aggravates a crime, or makes it greater than it was, when committed; (3) every law that changes the punishment, and inflicts a greater punishment, than the law annexed to the crime, when committed; and (4) every law that alters the legal rules of evidence, and receives less, or different, testimony, than the law required at the time of the commission of the offense, in order to convict the offender (slip opinion at page 7). (citing, Calder v. Bull, 3 Dall 386 (1793)).

At issue in Peugh was Calder’s third category of the ex post facto clause laws that “change the punishment, and inflict a greater punishment, than the law annexed to the crime, when committed”. (slip op., at 8). Peugh’s claim was that the ex post facto clause was violated because the 2009 Guidelines call for a greater punishment than annexed to bank fraud in 2000, when his crimes were committed. The Government on the other hand, claimed that because the mere punitive guidelines applied at Peugh’s sentencing were only advisory, there was no ex post facto issue. Id.

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The Demise of Pell Grants

Dr. John Marc Taylor, Ph.D.

They were code words. Employed in the opening salvos of the Reagan Revolution, the irresponsible “unwed mother”, lazy “welfare queen”, parasitic “drug dealer” and dangerous “gang-banger” were not-so-subtle euphemisms for the poor and people of color. The conservative movement’s concerted onslaught on the more inclusive entitlement and social safety net programs inspired by the New Deal era of government commenced, however, against the politically powerless and publicly vilified prisoner.  Jon Marc Taylor, Ph.D. / Image courtesy

While the more overt War on Drugs with the attendant abolition of parole, mandatory minimum sentences, and expanded death penalty would take years to enact and for the crushing consequences to be felt, the initial forays against prisoners was fired by Virginia Congressman William Whitehurst in 1982, when he submitted legislation to rollback inmate Pell Grant disbursements. By 1991, senators and representatives from both parties (primarily from the old Confederacy) repeatedly introduced legislation to exclude “any individual who is incarcerated in any federal or state penal institution” from qualifying for Pell Grant assistance. For a decade, the various annual exclusion-fest amendments either did not make it out of their committees, or if passed on floor votes, were struck in the joint resolution committees.

Then in 1991, the primary force behind the eventually successful exclusionary legislation, Senator Jesse Helms, pontificated “the American taxpayers are being forced to pay taxes to provide free college tuitions for prisoners at a time when so many law abiding, tax-paying citizens are struggling to find enough money to send their children to college.” The following year, Representative Thomas Coleman claimed 100,000 prisoners unrightfully received Pell Grants. And in 1993, Senator Kay Bailey Hutchison stated that prisoners “received as much as $200 million in Pell funds.”

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