Volume 108
Issue 2
January '20

Saving Justice: Why Sentencing Errors Fall Within the Savings Clause, 28 U.S.C. § 2255(e)

Written By: Brandon Hasbrouck

Abstract

Notwithstanding the extent to which scholars, lawyers, and community organizers are broadening their contestations of the criminal justice system, they have paid insufficient attention to federal sentencing regimes. Part of the reason for this is that sentencing is a “back-end” criminal justice problem and much of our nation’s focus on criminal justice issues privileges “front-end” problems like policing. Another explanation might be that the rules governing sentencing are complex and cannot be easily rearticulated in the form of political soundbites. Yet sentencing regimes are a criminal justice domain in which inequalities abound—and in ways that raise profound questions about fairness, due process, and justice. This is particularly true regarding the draconian conditions placed on federal prisoners’ abilities to challenge their unlawful sentences under 28 U.S.C. § 2255.

A federal prisoner’s sentence is unlawful when courts—the Supreme Court or a controlling circuit court—wrongly interpret a statute that significantly enhanced the prisoner’s sentencing range. After the person is sentenced and files a direct appeal and initial 28 U.S.C. § 2255 motion, the court corrects its errors and determines that correction to be retroactive. The federal prisoner returns to the sentencing court and requests to be sentenced under the correct, unenhanced sentencing range, as the original sentence is no longer authorized by law. There is a deep circuit split regarding whether federal prisoners may seek post-conviction relief for these sentencing claims under the savings clause, 28 U.S.C. § 2255(e)—the procedural vehicle that allows federal prisoners access to the court to challenge an unlawful sentence under the general habeas statute, 28 U.S.C. § 2241.

This Article’s significance is twofold. First, because courts have struggled to discern the meaning of the savings clause, this Article provides a text-based interpretation of section 2255(e) that is grounded in the stat-ute’s text and is consistent with its structure and purpose. Second, this Article proposes a doctrinal test that courts should adopt in analyzing sentencing claims brought under the savings clause. Specifically, this Article proposes that relief under the savings clause is appropriate when the claim relies on a retroactively applicable decision of statutory interpretation, the claim was foreclosed by binding precedent at the time of the initial section 2255 motion, and the claim involves a fundamental defect in the sentence. This Article contends that any error that alters the statutory range Congress prescribed for punishment—the ceiling or the floor—raises separation of powers and due process concerns and is thus a fundamental defect in criminal proceedings. In short, federal prisoners should be able to access courts to raise their sentencing claims consistent with this Article’s proposal.

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