A full panel of the U.S. Court of Appeals for the 4th Circuit, fifteen judges in all, heard arguments this week regarding whether they have the power to do anything about Raymond Surratt Jr.’s mandatory life sentence, which just about everybody—-the sentencing judge, Surratt’s defense lawyers and government prosecutors—agrees is unjust.
Until the Surratt case, no federal appellate court has faced the question of whether a court it has a route to correcting a mistake of its own making when the error is as severe as a mandatory life sentence. The North Carolina father of two is incarcerated at a federal facility in Virginia for a 2005 cocaine conviction. If Surratt were sentenced today, he would face a mandatory minimum penalty of only ten years in prison. If he had been sentenced under current laws in 2005 rather than the laws then in effect, he would be out of jail by now.
Surratt pleaded guilty in 2005 to conspiring to distribute at least 50 grams of cocaine in western North Carolina. The judge said he had no choice under sentencing guidelines other than to give him a mandatory life sentence because of Surratt’s earlier drug convictions. The judge called the penalty “undeserved and unjust.”
The conviction and sentence were upheld after Surratt’s appeals. Now he has no appeals left. But in 2011, the 4th Circuit, which includes North Carolina, overruled past practice, meaning that it held that prior convictions as in Surratt’s case should not trigger a mandatory life term.
Now, I know that non-lawyers react to this by thinking, “So what’s the problem? Let him out!” That’s in line with the reaction they have when they hear about a defense lawyer who knows his mad-dog killer defendant is guilty of a heinous, bloody crime (“So tell the judge!”). However, the law can’t be changed on the fly, and the fact that a result may be obviously wrong doesn’t change the importance of addressing it within existing procedures, rules and laws. In this case, no more appeals means no more appeals.
The Surratt case involves the important judicial principle of finality. Prof. Steven H. Goldblatt, who runs Georgetown Law Center’s appellate litigation clinic, told the court that finality is of vital importance to the legal system. Agreeing, a majority of the Fourth Circuit panel said last year that…
“Although one might find it tempting to put finality concerns aside for the sake of self-designed notions of fairness, finality provides closure to victims and the defendant: it assures the victim that his assailant will be punished, while it directs the defendant to move on with his life.”
As part of a plea deal, Surratt waived his right to appeal and acknowledged that he faced the possibility of a mandatory life sentence if he did not fully cooperate with the government. But at sentencing, prosecutors said Surratt’s cooperation efforts were “halfhearted” and had not assisted their investigation, so the deal was off.
The Surratt case is a perfect embodiment of the maxim that “hard cases make bad law.” Allowing Surratt to challenge his sentence would “thwart almost every one of the careful limits that Congress placed on post-conviction challenges to a federal prisoner’s sentence,” according to the majority opinion written in July by Judge G. Steven Agee. In other words, even if addressing the injustice in Surratt’s case is fair and just, it will inevitably be used as a precedent to undermine process requirements that are crucial and necessary to keep the justice system manageable. In the hearing before the full 4th Circuit, Judge J. Harvie Wilkinson III specifically cited the “hard case-bad law” principle. He said he was sympathetic to Surratt’s plight, but worried about the consequences if inmates are allowed to repeatedly challenge their sentences retroactively any time the sentencing rules change. “I’ve never seen something as open ended as this,” he said. “We’re going to be swamped, literally swamped.”
Congress has limited legal reviews of convictions in the interests of finality. In 1996, Congress passed new limits on challenges from federal inmates, and President Bill Clinton signed those limits into law. Now prisoners can try to have judges reconsider their cases only in rare situations, such as when new evidence is discovered or when a change in a law means the offense in question is no longer a crime. Surratt’s problem, everyone agrees, was not included as an exception to finality.
This is an ethics conflict placing fairness to one individual in conflict with the government’s duties of responsibility, consistency and process. It calls for a utilitarian analysis: a single injustice to one inmate may be a legitimate price to maintain the principle of finality and to avoid creating a precedent that will do long-term harm to the system.
The way a “hard case” should be handled so that it does not create a disrupting precedent is to use the Founders’ remedy, enshrined in the Constitution. Section II states:
“The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States; he may require the Opinion, in writing, of the principal Officer in each of the executive Departments, upon any Subject relating to the Duties of their respective Offices, and he shall have Power to grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment.”
President Obama has lagged behind all of his predecessors in granting pardons until very recently. In a mad dash to enhance his “legacy,” Obama has invited thousands of jailed drug offenders and other convicts to seek early release, urging lawyers across the country to assist them. Because the Obama administration was already receiving record numbers of applications for commutation of sentences before that invitation, however, this sudden interest in his previously neglected power has led to a clogged process and a hopeless backlog. Reuters reports that “more than 8,000 cases out of more than 44,000 federal inmates who applied have yet to make it to the U.S. Department of Justice (DOJ) for review. In addition, there are “about 9,000 cases that are still pending review” at Justice.
Surratt’s case is one that, in a properly monitored and administered pardon system, would rise to the top of the pile. Not only is there a clear injustice, any solution to it other than a pardon will have destructive consequences, because it would create a damaging precedent. The President could read the article about Surratt in the Washington Post, or be briefed on it by an aide, and pardon Surratt in about ten minutes, solving the problem.
He won’t, of course. Since he won’t, and without the use of the pardon power which was the Founders’ favored tool to cut such Gordian knots, I think the better of two ethically imperfect options is to let Surratt stay in prison.