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August 14, 2013

"Accuracy in Sentencing"

The title of this post is the title of this interesting looking new paper by Brandon Garrett now available via SSRN. Here is the abstract:

A host of errors can occur at sentencing, but whether a particular sentencing error can be remedied may depend on whether judges characterize errors as involving a “miscarriage of justice” — that is, a type of claim of innocence.  The Supreme Court’s “miscarriage of justice” standard, created as an exception to excuse procedural barriers in the context of federal habeas corpus review, has colonized a wide range of areas of law, from “plain error” review on appeal, to excusing appeal waivers, the scope of cognizable claims under 28 U.S.C. § 2255, the post-conviction statute for federal prisoners, and the “Savings Clause” that permits resort to habeas corpus rather than § 2255.  That standard requires a judge to ask whether a reasonable decisionmaker would more likely than not reach the same result.  However, the use of the miscarriage of justice standard with respect to claims of sentencing error remains quite unsettled.

In this essay, I provide a taxonomy of types of innocence of sentence claims, and describe how each has developed, focusing on federal courts. I question whether finality should play the same role regarding correction of errors in sentences, and I propose that a single miscarriage of justice standard apply to all types of sentencing error claims, when not considering on appeal under reasonableness review. Finally, I briefly describe how changes to the sentencing process or sentencing guidelines could also reflect certain concerns with accuracy.

August 14, 2013 at 10:53 PM | Permalink


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I hear you clearly Doug. Young needs to have his sentence fixed. Too bad the AUSA
Has immunity.. He really needs to be booted out.

Posted by: MidWestguy | Aug 14, 2013 11:15:50 PM

No more 13th amendment. Enough already you ain't slick:
Bill of Rights South Africa

13. Slavery, servitude and forced labour

No one may be subjected to slavery, servitude or forced labour.Bill of Rights U.S.A

13. Section 1.
Neither slavery nor involuntary servitude, except as a punishment
for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.

Section 2.
Congress shall have power to enforce this
article by appropriate legislation.
The Kings English aint workin' no mo'

Posted by: algebra works (@colorsofalgebra) | Aug 15, 2013 2:32:20 AM

If you can't make$ off these slaves per 13th amendment (convicted) No more crazy sentencing. No more stop and frisk (stop and feel), peodiphilia, or brooms up the butt.

Posted by: algebra works (@colorsofalgebra) | Aug 15, 2013 2:37:04 AM

What I am is a white, Anglo VICTIM of the stupid war on drugs. I spent allot of time incarcerated and in the law library, studying law and history.

I got to this page trying to find federal law pursuant to Am 13, sect 2.

The language and history are facially easy to understand and not vague. "Neither/nor" means two mutually exclusive concepts. While slavery may incorporate involuntary servitude the reverse is not true. The exception of "punishment for a crime..." clearly refers to "involuntary servitude" and not "slavery." One does not become a slave by virtue of a criminal conviction. One can become subject to compulsory ORDERS or pay the price of further punishment. (hole time, etc.)

The difference between slavery and involuntary servitude embodies the difference between "custody" and "property ownership." Indeed, even Dred Scott and other cases turn on this concept. A slave is chattel property which can be bought and sold. Together, the 13th and 14th Amendments make it clear that "citizens" and "persons" are not property. They are not objects nor things nor tools nor commodities nor means-to-an-end to be used by social engineers. No human being can be "owned." They can via court decree be taken into custody.

Therefore: The entire concept of private prisons as a legitimate corporate business venture is immoral and illegal against the 13th Amendment. The people of the State of Wyoming can via legislative process pass stupid laws to imprison me for my choice of imbibe. But, then they must go through the trouble and expense to torture me pursuant to that law. They CANNOT sell nor rent me to a corporate entity for that obligation.

Simply, I am NOT a slave.

Posted by: Ron Jones | Oct 6, 2013 4:49:10 PM

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