I’ve mentioned in the past that a lot of cases are coming through the courts now by defendants who committed their crimes before the Foster decision, claiming that the application of Foster to their cases violated the Constitution’s ex post facto clause.  The way this argument goes is that a person with no prior record who committed a robbery in December of 2005 was entitled to receive a minimum prison sentence unless the judge found certain factors.  And then Foster comes down, and suddenly the judge can give him any time, even maximum consecutive sentences, without making any findings at all.  If a statute had required that all first offenders serve minimum sentences, then had been replaced with one allowing a judge to impose a sentence of any length, someone who committed a crime before the new law went into effect would be entitled to the sentencing provisions of the old law.

While the ex post facto clause normally applies only to statutes, it can be applied to cases as well; back in the 60’s, the US Supreme Court held that the South Carolina Supreme Court’s reinterpretation of the trespassing laws so as to apply them to civil rights activists engaging in a sit-in was an ex post facto rule violation.

The courts examining the Foster argument have usually seized on one aspect of the Supreme Court’s decision, that the defendants there could not have anticipated that the South Carolina court would reinterpret the law in this fashion.  The heart of the ex post facto prohibition is that it’s unfair to retroactively penalize people for conduct which was perfectly legal at the time they did it.  That unfairness can occur just as easily from a judicial decision as a new statute.  (Actually, the proper argument is that it’s a violation of due process, rather than the ex post facto clause.)

So the argument the courts have often made here is that defendants had fair warning well before Foster that Ohio’s sentencing scheme had problems.  In this decision, for example, the 1st District argued that the US Supreme Court’s Apprendi decision in 2000 gave fair warning of the defects in Ohio’s law.

Frankly, the notion that the average law professor, let alone the average defendant, thought that Apprendi affected Ohio’s sentencing statutes is a real stretch.  In fact, Foster itself refutes that notion.  In Foster, the state argued that the defendants had waived any objection to their sentence by not raising it at the time of sentencing.  The court rejected the claim, noting that

“Foster could not have relinquished his sentencing objections as a known right when no one could have predicted that Blakely would extend the Apprendi doctrine to redefine ’statutory maximum.’”

As this case shows, there are any number of good reasons to reject the ex post facto argument on Foster.  That defendants should have foreseen what virtually no one else did is not one of them.