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August 18, 2015

Finally, a bit more (though inadequate and unfair) discussion of sentencing finality issues

I am intrigued to see this potent new New York Times op-ed by civil rights attorney Alec Karakatsanis headlined "President Obama’s Department of Injustice."  But, as explained below (and as hinted in the post title), though this piece does a useful job of highlighting concerns with doctrines and policies that give too much significance to the "finality" of problematic federal prison sentences, I fear this op-ed is itself a problematic version of "shooting the messenger."  Here are excerpts (with some key phrases emphasized for the comments to follow):

Last month, President Obama used his clemency power to reduce the sentences of 46 federal prisoners locked up on drug­-related charges.  But for the last six years, his administration has worked repeatedly behind the scenes to ensure that tens of thousands of poor people — disproportionately minorities — languish in federal prison on sentences declared by the courts, and even the president himself, to be illegal and unjustifiable.

The case of Ezell Gilbert is emblematic of this injustice.  In March 1997, he was sentenced to 24 years and four months in federal prison for possession with the intent to distribute more than 50 grams of crack cocaine.  Because of mandatory sentencing laws, Mr. Gilbert was automatically sentenced to a quarter-century in prison, though even the judge who sentenced him admitted that this was too harsh.

At his sentencing, Mr. Gilbert noted a legal error that improperly increased his sentence by approximately a decade based on a misclassification of one of his prior offenses. In 1999, without a lawyer, he filed a petition seeking his release.  A court ruled against him. Nearly 10 years later, the Supreme Court issued a ruling in another prisoner’s case, confirming that Mr. Gilbert had been right.  A public defender helped him file a new petition for immediate release in light of this new decision.

Mr. Obama’s Justice Department, however, convinced a Florida federal judge that even if Mr. Gilbert’s sentence was illegal, he had to remain in prison because prisoners should not be able to petition more than once for release.  The “finality” of criminal cases was too important, the department argued, to allow prisoners more than one petition, even if a previous one was wrongly denied.

A federal appellate court disagreed, and in June 2010, three judges set Mr. Gilbert free. The judges rejected the administration’s argument as a departure from basic fairness and explained that it simply could not be the law in America that a person had to serve a prison sentence that everyone admitted was illegal.  Mr. Gilbert returned home and stayed out of trouble.

Here’s where it gets interesting. There are many people like Mr. Gilbert in America’s federal prisons — people whose sentences are now obviously illegal. Instead of rushing to ensure that all those thousands of men and women illegally imprisoned at taxpayer expense were set free, the Justice Department said that it did not want a rule that allowed other prisoners like Mr. Gilbert to retroactively challenge their now illegal sentences.  If the “floodgates” were opened, too many others — mostly poor, mostly black — would have to be released.  The Obama administration’s fear of the political ramifications of thousands of poor minority prisoners being released at once around the country, what Justice William J. Brennan Jr. once called “a fear of too much justice,” is the real justification.

In May 2011, the same court, led by a different group of judges, sided with the original judge, saying that the “finality” of sentences was too important a principle to allow prisoners to be released on a second rather than first petition, even if the prison sentence was illegal.  A contrary rule would force the courts to hear the complaints of too many other prisoners. Mr. Gilbert was rearrested and sent back to prison to serve out his illegal sentence.

Judge James Hill, then an 87-­year­old senior judge on the appellate court in Atlanta, wrote a passionate dissent.  Judge Hill, a conservative who served in World War II and was appointed by Richard M. Nixon, called the decision “shocking” and declared that a “judicial system that values finality over justice is morally bankrupt.”  Judge Hill wrote that the result was “urged by a department of the United States that calls itself, without a trace of irony, the Department of Justice.”  Judge Hill concluded: “The government hints that there are many others in Gilbert’s position — sitting in prison serving sentences that were illegally imposed. We used to call such systems ‘gulags.’ Now, apparently, we call them the United States.”

Two years later, the Justice Department used a similar tactic to overturn an entirely different federal appellate court decision that could have freed thousands of prisoners convicted of nonviolent crack cocaine offenses — again, mostly impoverished and mostly black — on the grounds that their sentences were discriminatory and unjustifiable.  The administration again did its work without fanfare in esoteric legal briefs, even as the president publicly called the crack­-cocaine sentencing system “unfair.”

In 2013, several years after sending him back to prison, Mr. Obama granted Mr. Gilbert clemency, and the president has recently won praise for doing the same for several dozen other prisoners of the war on drugs....  

But Mr. Obama must take steps to further undo the damage that he has done.  He should use his clemency power to release all those currently held in a federal prison on an illegal sentence.  And he should appoint a permanent special counsel whose job would be to review new laws and federal court cases on a continuing basis to identify and release other prisoners whose sentences retroactively become clearly unlawful.  That the Department of Justice and Bureau of Prisons have never created such a position is an outrage.  If we fail to demand change now, this moment for justice may be lost.

I very much like this author's suggestion that DOJ and BOP have special counsel who would seek to identify and advocate for the release of those currently held in a federal prison on an illegal sentence. But, as a matter of substance, given that vast majority of federal prisoners sentenced before the 2005 Booker ruling were sentenced in violation of the Sixth Amendment, the author is arguably asserting that it is unjust that any federal prisoner is still serving any pre-Booker guideline sentence (let alone any other sentence impacted by any of the many pro-defendant Supreme Court sentencing rulings of the last decade).

Even more troublesome, as a matter of process, DOJ has not really been "working behind the scenes" or using any novel "tactic... in esoteric legal briefs" in order to keep prisoners behind bars based on illegal sentences.  Rather, DOJ has been just doing its job, namely seeking to faithfully execute the laws duly enacted by Congress and interpretted by the courts.  In the Gilbert case and in the other cases referenced in this op-ed, the real "villian" in these complicated legal stories is not really DOJ, but the text of the AEDPA and the Fair Sentencing Act which DOJ is duty-bound to seek to faithfully apply.  

This op-ed is not entirely off-base for suggesting that DOJ could be more inclined to read federal statutes and court rulings in a more defendant-friendly way.  But, especially in recent years, DOJ under the Obama Administration has actually been pretty willing to help prior-sentenced defendants get an extra day in court.  For example, after a few lower courts ruled that the FSA's lower crack mandatory minimums applied to "pipeline cases," DOJ changes its litigation arguments to a more defendant-friendly position.  In addition, Obama's DOJ has generally endorsed retroactive application of defendant-friendly guideline amendments.  And, most recently, DOJ appears to be taking a pro-defendant stance on the broad retroactivity of the Supeme Court's recent constitutional rulings in Miller concerning juve LWOP sentences and Johnson concerning ACCA sentences.

As regular readers know, I pull few punches when it comes to criticizing the Obama Administration and its Justice Department when making what I view as misguided discretionary decisions concerning the application and enforcement of federal sentencing laws and procedures.  But this op-ed, rather than highlight fundamental problems with laws like AEDPA and court jurisprudence that gives excessive weight to sentence finality, seems problematically eager to suggest a star-chamber deep inside Main Justice has Obama Administration officials twirling their mustashes while devising esoteric tactics for keeping innocent people in prison for as long as possible.  

I do not want to unduly criticize this op-ed because I have long been motivated by the same concerns as the author concerning courts having ample means to remedy problematic prior-imposed prison sentences. But the core problem is not really Obama's DOJ and its litigation positions, but the laws put in place by Congress and interpretted by the courts which largely demand that DOJ take many of its seemingly hard-hearted litigation positions.

Some (of many) prior posts on sentencing finality:

August 18, 2015 at 02:05 PM | Permalink


Doug, what are the so-called "problems" with AEDPA? Other than the fact that too many federal judges blow off the rules.

Posted by: federalist | Aug 18, 2015 2:57:05 PM

When the law changes via SCOTUS ruling to show a defendant's long asserted sentencing complaint was correct but had been wrongfully rejected by lower courts, AEPDA may foreclose a renewal of the claim wrongfully denied the first time raised. This was the issue in Gilbert and many similar cases involving sentencing issues lower circuits got wrong until SCOTUS finally ruling in favor of a defendant.

Posted by: Doug B. | Aug 18, 2015 3:37:20 PM

So you're focused on 2255, not 2254?

That's fair--just curious.

Illegal sentences should always be able to be corrected. The problem is that we cannot have death slog litigation in case after case. You've talked about "too much justice"--but you know that just glazes over the very real importance that finality has.

Posted by: federalist | Aug 18, 2015 7:50:56 PM

As someone who has had a passing acquaintance with Alec Karakatsanis, I wouldn't say that nuance when it comes to perceived injustice is one of his great strengths.

Posted by: Jay | Aug 18, 2015 10:04:50 PM

The piece quoted in this post is all about federal sentencing, so I thought it obvious that the focus here was 2255. More fundamentally, I would like to hear about what finality serves when what is final, whether conviction or prison term, is indisputably now wrong.

I assume you would not support continued punishment of an indisputably innocent defendant in the name of finality. For the same reason, I find problematic the continued enforcement of prison sentences based on indisputably wrong sentencing law in the name of finality.

Posted by: Doug B. | Aug 18, 2015 10:36:32 PM

But, what is "indisputably wrong" in the sentencing context? This is not like innocence where you didn't do it, and if we find that out later you should be released ASAP. These sentencing things are constantly in flux. It seems like on a daily basis something in federal sentencing law is changing. 1 day this is your sentence (a constitutionally permissible sentence), the next day that sentence we just imposed is now unconstitutional. 1 day the ratio is 100:1, the next day it is 1:1 (as DOJ argued in the brief period before FSA), the next day it is 18:1. 1 day it is reasonable and entirely appropriate to consider rehabilitation in setting the sentence under 3553(a), the next day that same thing is unconstitutional. 1 day negligent homicide is an ACCA predicate, the next day it is not. At some point, we have to just say enough. It's not like you were innocent in the first place. You did the crime, and at the time you did the crime the punishment was X. You received X. The fact that Congress or the Court changed the punishment to Y ten years later does not mean that we start your case all over again and pretend that the punishment at the time you committed the crime was Y. Again, if we are talking guilt and innocence, then it is a different story.

Posted by: IMHO | Aug 19, 2015 6:25:57 AM

Doug, you've elided state/federal before.

In any event, you well know how "too much justice" is just sloganeering. IT's weak.

Posted by: federalist | Aug 19, 2015 7:53:14 AM

The problem with "too much justice" is that justice is merely one part of the equation. The other part of the equation is the use of time and resources, including the time and resources of victims and witnesses. When the injustice is the wrong procedure rather than a clearly wrong result (particularly true in the sentencing context where there is a range of "right" sentences), having a new hearing just to correct the procedural error is not necessarily sensible.

An additional concern is how difficult it is to achieve "justice" when too much time has passed since the original incident. Each step of the process -- trial, direct appeal, IAC motion, appeal of IAC motion, federal habeas (for state convictions) -- takes the case further down the road from the original incident making it harder for both sides to present evidence at a new trial. Given this problem, the original jury's finding is more likely to be accurate than a later jury's finding (if it is even possible to re-try the case). Giving some weight to finality reflects this problem by making the person seeking to re-open the case to demonstrate why the original jury's finding is so suspect that a new trial would result in a more accurate verdict.

Lastly, there is the recognition of reality. Inmates serving long sentences have every incentive to file and re-file their claims. Every new case is "just like" their case. No legal system could function if courts had to treat the tenth round of claims with the same level of detailed review as the first round of claims (and I am aware of no legal system that does). Emphasizing the importance of finality is merely a shorthand way of saying that the inmate needs to show "something more" to justify a court undertaking a close review of that tenth round of claims.

Are there circumstances in which the "injustice" is so compelling that the claim overcomes the interest in "finality"? Yes. But finality serves a purpose in a human system with limited resources that can only achieve a close approximation of justice.

Posted by: tmm | Aug 19, 2015 10:14:02 AM

The emphasis some courts have with finality is a problem. Finality serves important interests because at some point legal disputes must be settled and the losing side must accept the authority of the court. But finality should not be something that pursued for its own sake. You can never be too rich or too good-looking. There should be the right amount of finality, but no more.

Consider these examples:

When Congress acknowledged that crack cocaine defendants sentences were too harsh, what purpose is served by refusing to adjust the sentences of those who were sentenced before the change in the law?

A state legalizes recreational pot use & sales. Assuming someone is serving a sentence for pot use that pre-dated the legalization, what is the point of having that person copntinue to serve that sentence?

A state abolishes the death penalty. Having decided that the death penalty is no longer necessary, what is the point of executing those defendants on death row?

Posted by: Bryan Gates | Aug 19, 2015 11:45:40 AM

That first sentence should read:

"The emphasis some courts place on finality is a problem."

I need to proofread before hitting "post."

Posted by: Bryan Gates | Aug 19, 2015 11:47:31 AM

Society has no justifiable interest in the preservation of illegal sentences. Before the Sentencing Reform Act illegal sentences were easily correctable under Fed. R. Crim. P. 35. Congress should restore "old law" Rule 35. We needlessly are forced to wade through machinations of whether the "savings clause" and other tests are met because of laws like AEDPA.

Posted by: Brandon Sample | Aug 19, 2015 12:02:34 PM

A great discussion, commenters, and lots of these issues are covered in prior posts linked above. I wanted to especially highlight two points in response to thoughtful comments by IMHO and tmm:

1. I concur, IMHO, that what is "indisputably wrong" in the sentencing context is often changing over time because the law is often changing over time due to how long it takes for SCOTUS to consider/resolve big issues. But when a change-of-law-error happens with respect to basic guilt --- e.g., if SCOTUS says a federal statute does not extended as broadly as the feds and lower courts have all said in the past --- we still wipe out "wrong" prior convictions notwithstanding that we could say to defendants: "Hey, you still did the act, and we all thought that was a crime before SCOTUS changed the law, and finality demands we keep branding you a criminal even though we now know you did not actually violate the statute." I continue to be eager to hear from you or from federalist or others whether (and why) you think there are valid/important finality interests in preserving a sentence that we later decide is "indisputably wrong" even if this wrongness is created by a legal change rather than discovery of new facts.

2. You are right, tmm, that prisoners have every incentive to file and re-file claims challenging their sentences while they are still serving them. But that fact, in my mind, is because for current prisoners their prison sentences are not truly "final" until AFTER they are released from prison. And I truly cannot imagine the sting for a current prisoner who (1) has long been making a viable claim about his prison term being wrong/excessive and kept losing for years until, (2) SCOTUS finally hears the claim in another case and says the prisoner was right all along, but then (3) gets told he cannot now have his all-along-potent claim heard because he brought it earlier and (wrongfully) lost the first time around, and thus (4) is told the interest in finality justifies his continued time in prison on an indisputably wrongful sentence. If this is a form of justice that anyone other than Kafka would appreciate, I would like to hear why.

Posted by: Doug B. | Aug 19, 2015 4:22:02 PM

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