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April 27, 2017

Does acceptance of a commutation moot a prisoner's collateral legal challenge to a prison sentence he is still serving?

The complicated question in the title of this post is the issue addressed in a complicated set of opinions issued by various members of the en banc Fourth Circuit as the full court dismissed as moot the long-running case of Raymond Surratt in US v. Surratt, No. 14-6851 (4th Cir. April 21, 2017) (available here).  As the latest opinion in Surratt reveals, I was involved in this case as an amicus, but I had largely forgotten that fact given that the Surratt panel opinion, as noted here, was decided nearly two years ago and oral argument before the en banc Fourth Circuit took place more than a year ago. 

I surmise that the en banc Fourth Circuit was deeply divided on the procedural and substantive issues that the complicated Surratt case presented and that a mootness ruling served as a convenient way to dispose of a hard case thanks to the deus ex machina of Prez Obama's grant of clemency to Raymond Surratt.  I am surely biased in this view because I served as an amicus in the case, but also because I think these passages from Judge Wynn's dissent make a pretty solid case against mootness:

Here, there is no dispute that if we vacate Petitioner’s commuted sentence and remand for resentencing, Petitioner will likely face a sentence shorter than that imposed by the commutation. In particular, whereas the President commuted Petitioner’s life sentence to 200 months’ imprisonment, Petitioner’s applicable Guidelines range is 120 to 137 months, less than his time-served.  Accordingly, Petitioner has a continuing “concrete interest” — namely, his liberty — in having us vacate his current sentence and remand for resentencing under the applicable Guidelines.  We and other courts have found arguably substantially less significant interests adequate to preclude mootness. See, e.g., Townes v. Jarvis, 577 F.3d 543, 547 (4th Cir. 2009) (holding that the petitioner’s release from prison did not moot his collateral challenge to his sentence because a favorable appellate decision could “affect the length of his parole”); Richards v. United States, 212 F.2d 453, 454 (D.C. Cir. 1954) (holding that defendant’s collateral challenge to the lower end of his sentencing range was not moot, even though defendant had already served more than that lower end, because “there is some possibility” that having a longer minimum sentence “may in some indirect way affect him adversely in the future”).

I am not alone in my view that an injustice continues by declaring this matter now moot. Indeed, the Seventh Circuit, the only circuit that appears to have squarely addressed the issue, refused to find mootness in analogous circumstances, holding that a petitioner may collaterally challenge his original sentence, notwithstanding that the challenged sentence was commuted during the course of litigating that collateral challenge, when the commuted sentence exceeds the mandatory minimum the petitioner would face if he prevailed on his collateral challenge.  See Simpson v. Battaglia, 458 F.3d 585, 595 (7th Cir. 2006); Madej v. Briley, 371 F.3d 898, 899 (7th Cir. 2004).  In Simpson, for example, after the petitioner filed a habeas petition challenging his death sentence, the Governor of Illinois commuted the petitioner’s sentence from death to life imprisonment without parole. 458 F.3d at 595.  Like the government does here, the State argued that the commutation rendered the petitioner’s collateral challenge to his sentence nonjusticiable, and therefore moot, because of the petitioner’s decreased sentence and “the executive nature of his confinement.” Id.  The Seventh Circuit rejected both arguments, explaining that because the petitioner would face a mandatory minimum of 20 years’ imprisonment if he prevailed on his collateral attack, as opposed to the life sentence imposed by the Governor, “it [wa]s possible for [the petitioner] to obtain relief, and his sentencing claims [we]re not moot.” Id. Put differently, “[a] full remedy for the constitutional shortcoming at the original sentencing hearing entails allowing [the petitioner] to seek that lower sentence now.” Id. (second alteration in original) (quoting Madej, 371 F.3d at 899).

I presume Raymond Surratt could opt to seek Supreme Court review of the Fourth Circuit's decision that his collateral challenge to his old/new sentence is moot. But, ironically, the Fourth Circuit's mootness claim may arguably get stronger in the very process of cert review, at least functionally if not legally, because Surratt likely will have finished serving his 200 months in federal prison by the time the Supreme Court could get around to taking up and hearing Surratt's challenge to the Fourth Circuit's mootness conclusion.

April 27, 2017 at 12:41 PM | Permalink


Doug, you are right. Attaching unspoken conditionality to a clemency grant is a violation of separation of powers.

Posted by: federalist | Apr 27, 2017 1:31:55 PM

That is a thorny issue but my gut reaction is that it is moot, simply on policy grounds. Let me ask this question: imagine that a president commuted a sentence, the court holds that the sentencing was flawed in some way, sends it back to the lower court, and the court sentences him again to a term of years greater than the commutation. What sentence does he serve and why? I don't think it all self-evident that in such a situation he serves the commuted sentence because I don't see how a presidential commutation (as opposed to a presidential pardon) can trump a judicial action prospectively.

Now, that is not the specific case here because here it seems likely that he would benefit from a sentence lower than the commutation. But I don't think that fact illustrates much as to which is the proper course of action on policy grounds. In my view once the president issues a commutation that ends all sentencing proceedings.

Posted by: Daniel | Apr 27, 2017 2:16:44 PM

Daniel, you are thinking about it incorrectly. The President's power, with respect to commutations is virtually unfettered. Thus, the amount of time he set on the prisoner's sentence becomes the absolute ceiling on the time he will serve with respect to the criminal act. President Obama did not condition the clemency on the waiver of rights--the judiciary has no power to imply that waiver.

Doug is right; this is an injustice, and I am surprised that the DoJ is actually making this argument, Honestly, it's frivolous.

Posted by: federalist | Apr 27, 2017 2:57:01 PM


"The President's power, with respect to commutations is virtually unfettered."

On what basis do you make that claim? It certainly doesn't derive from the plain text of the Constitution.

Posted by: Daniel | Apr 27, 2017 8:05:47 PM

Prof. Berman,

The constitution grants to the president "power to grant reprieves and pardons for offenses against the United States", I fail to see any limitation in that text and commutation is plainly within the ambit of the considered power. I'm not even sure that grants that would be unconstitutional under other provisions such as a president who pardoned all white convicts but no others) would fail under the pardon power. Even a pardon bought through bribery likely would still be valid (though the recipient would of course then be on the hook for the new offense unless that too were part of the pardon, and the president would be answerable to impeachment and removal regardless).

Posted by: Soronel Haetir | Apr 27, 2017 8:56:13 PM

The crucial question here is not the scope of the presidential pardon viewed isolated but rather what effect that pardon power has on an independent branch of government. I agree with Soronel that the pardon power is sweeping and likely even as sweeping as he claims it to be. But the person is this case wasn't pardoned, he was granted as a commutation. The way a see a full pardon negates the entire judicial process but a commutation does not, a commutation only brings the present judicial proceedings to a halt. The consequence of this is that a pardon applies both retroactively and prospectively but a commutation only applies retroactively, to judicial proceedings already taken. If the person whose sentence was commuted chooses on his own violation to engage in future judicial proceeding he does so at his own peril.

Posted by: Daniel | Apr 27, 2017 9:57:08 PM

Finishing the prison sentence doesn't moot the appeal if there is a term of supervised release.

Posted by: Busracer | Apr 27, 2017 9:59:25 PM

The Constitution admits of no limits on the pardon power. Thus, the only limits are ones that animate all law--namely, that a pardon procured with a bribe could be undone or where the Prez pardons himself.

That's why Daniel. Plus read Scalia's dissent in Morrison v. Olson--pardon is executive power--thus no other branch gets to mess with it.

Soronel, I am not sure that's right re: bribery.

"If the person whose sentence was commuted chooses on his own violation to engage in future judicial proceeding he does so at his own peril." Perhaps, if the President makes that a condition of the commutation grant.

Posted by: federalist | Apr 28, 2017 10:15:05 AM

Commutations and Pardons are both part of the President's executive power to grant clemency. Of course pardons were granted to Nixon and others who had no need of commutations if they had not been not been convicted or sentenced.

The power to grant commutations is equally unchecked by any other branch of government and are granted to those who are serving sentences imposed by the court. Commutations by definition over ride the judicial action. There is no difference in the Presidential authority to grant either form of clemency.

There are many cases in the the batch of commutations granted by President Obama that could cause this confusion. Many of the nonviolent marijuana offenders who had sentences of life without parole were granted commutations after they completed 30 years of their sentences. Many were in their late 60s. I'm sure they will continue to look for sentencing relief before the completion of the 30 years.

Posted by: beth | Apr 28, 2017 2:15:29 PM

And sorry, my comment was directed at Daniel, not the good professor.

Posted by: Soronel Haetir | Apr 28, 2017 3:56:54 PM

More nonsense from Federalist. How can any person, be he president or no, reprieve an action that hasn't happened yet? According to federalist this magic happens via a great deal of foot stomping, peans to language that says no such thing, and ipse dixet that I am shocked hasn't brought Behar out of the woodwork to foul up the thread.

Posted by: Daniel | Apr 28, 2017 7:52:33 PM

Daniel. I like you. I hope you find peace.

This question should be decided on the facts of the appellant's past conduct. Another way to say that is, on his status. I have supported allowing murderers to go home, and shoplifters to be executed, based on who they are. It has to be that way because criminals commit hundreds of unprosecuted crimes, and the shoplifting may have to stand in for being a mass murdering drug kingpin.

I have no comment on this case without those facts.

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