Wednesday, August 21, 2013
Brandon L. Garrett (University of Virginia School of Law) has posted Accuracy in Sentencing (Southern California Law Review, Vol. 86, 2014, Forthcoming) on 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.