The Champion

July 2003 , Page 38 

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The Feeney Amendment: Effective Date and Ex Post Facto Issues

By Peter Goldberger, Felicia Sarner

Ex Post Facto problems arise whenever new sentencing laws are passed, but the constitutional doctrines which the courts use to resolve them are remarkably stable and clear. Simply put, the only punishment that can attach to a crime is that which was in effect when the crime was committed. Most provisions of the Feeney Amendment became effective immediately upon enactment, April 30, 2003. See PROTECT Act, Pub.L. 108-21, § 401(j). This raises a multitude of ex post facto issues.

Since 1987, every circuit has either held or assumed that the Constitution’s Ex Post Facto Clause (Art. I, § 9, cl. 3) bars unfavorable retroactive application of amended provisions of the U.S. Sentencing Guidelines. See also Miller v. Florida, 482 U.S. 423 (1987) (adverse changes in statutory sentencing guidelines cannot apply to pre-enactment offenses). This doctrine is well settled, despite statutory language mandating that the court use the guideline which are “in effect on the date the de

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