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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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