Fear of Flooding - UPDATE

Are you a due process or a finality kind of guy?

The question came from a judge.  We'd just met.  He knew nothing about me except that I was licensed to practice law.  He was cutting, as they say (and, by the way, just who are "they" that do all the saying?), to the chase.

In a Times Op-Ed, Alec Karakatsanis, tells the story of Ezell Gilbert.

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.

But the law's the law, and mandatory minimums are just Congress's way of saying "Fuck you" to poor people who don't make big campaign contributions. (And, to save you the trouble of actually thinking about it, yes, that's all poor people.  #poor people's lives matter.*)  So a quarter century it was. 

Or maybe not.

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. 

It was an argument about how to apply (and when) a provision of the Armed Career Criminal Act, a matter of passing interest to almost nobody who isn't a lawyer in federal court or someone who gets serious time added to a sentence because of it.  Anyhow, Gilbert filed his petition.  Which, this being the land of the free and all, was promptly denied by the court of appeals because he was obviously wrong and mandatory minimums and Fuck you.

Which is where things stood for a decade or so until 2008 when SCOTUS, by an atypically split 6-3 vote, decided Begay v. United States.  Which said (although in Begay's case and not his) that, by god, Gilbert was right.  So back to court he went, this time with a lawyer.

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.

Which is obviously right.  Because if you let one poor guy out just because he was illegally sentenced to an extra decade in prison, then you probably have to do it for the next poor guy who's doing an extra decade in prison because the courts got the law wrong.  And then before you know it you'll have people just flooding the streets instead of filling prison cells that they aren't supposed to be in.

Which would lead to factually innocent people saying they shouldn't be in prison, either.  And if the feds start to let out innocent people, then the states might feel obligated to do the same.  Just think of the horror. 

Thousands of people who shouldn't have been in prison in the first place out on the streets. 

Lock up the women and children!

Anyhow, Gilbert appealed.  And a three-judge panel agreed.

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.

Which is lovely.  And of course proved to be wrong.  That is, indeed, the law in America.

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.

It's worth repeating that last sentence.

Mr. Gilbert was rearrested and sent back to prison to serve out his illegal sentence.

The vote was 8-3.  

In 2013, Obama granted clemency to Gilbert, let him out of prison again.  Which was, of course, what should have happened years ago.  And of the others?  Those the administration argues and the courts agree should stay in prison even though they're there illegally?  Because they were improperly sentenced or because they're legally or factually innocent or just because Fuck you?

Hell, Obama just commuted 48 sentences.  Noblesse oblige.  What more do you want? Expect him to just start letting the wrongly incarcerated and convicted out willy-nilly? Grow up.  This is America.

Among the three dissenting from the decision to send Ezell Gilbert back to prison was Judge James Hill. He wrote

Much is made of the “floodgates” that will open should the court exercise its authority to remedy the mistake made by us in Gilbert’s sentence. 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. 

Indeed.  Law of Rule.

I told that judge I was a due process kind of guy.  

* * * 

 Here's Judge Hill's dissent in its entirety at the bottom of this (omitting the footnotes).

HILL, Circuit Judge, dissenting, in which BARKETT, Circuit Judge, joins:
Ezell Gilbert’s sentence was enhanced by eight and one-half years as the result of his being found by the district court – reluctantly and at the explicit urging of the government – to be a career offender. Ezell Gilbert is not now, nor has he ever been, a career offender. The Supreme Court says so.
Today, this court holds that we may not remedy such a sentencing error. This shocking result – urged by a department of the United States that calls itself, without a trace of irony, the Department of Justice – and accepted by a court that emasculates itself by adopting such a rule of judicial impotency – confirms what I have long feared. The Great Writ is dead in this country.
Gilbert raised his claim of sentencing error to every court he could, every chance he got. No court correctly resolved his claim until the Supreme Court made clear that Gilbert’s claim was meritorious – he was never a career offender. Now, he has come back to us for relief from his illegal confinement. Our response to him is that he cannot apply for relief under § 2255 because he has done so before, and, although we erroneously rejected his claim, the statute does not permit such reapplication. Of course, had he not applied for § 2255 relief, we would be holding now that he had procedurally defaulted his claim by failing to raise it before.
This “Catch-22" approach to sentencing claims is nothing more than a judicial “gotcha.” Through our self-imposed limitations, we have found a way to deny virtually all sentencing claims. We do this, avowedly, in the pursuit of “finality.” But, in so doing, we cast a pall of unconstitutionality over the otherwise beneficial provisions of § 2255.
Furthermore, to “seal the deal” on finality, we hold today that even the savings clause of § 2255 – which appears to permit resort to the Great Writ itself in circumstances such as these – provides no avenue to relief for Gilbert because confinement pursuant to sentencing errors such as his does not offend the Constitution. Rather than acknowledging that Gilbert’s sentence is fundamentally defective and a miscarriage of justice, we hold that the error resulting in an additional eight and one-half years of prison time for Gilbert is a mere technicality, a misapplication of the Guidelines that has no remedy because it is not all that important. Gilbert’s erroneous enhancement as a career offender – demanded by the government at the time – is argued to be mere harmless error now that he has been proven right.
The government even has the temerity to argue that the Sentencing Guidelines enjoy some sort of legal immunity from claims of error because they are not statutes at all, but mere policy suggestions. And the majority appears not to understand that Gilbert’s imprisonment – no matter how his sentence was calculated – is the act of the Sovereign, who is forbidden by our Constitution to deprive a citizen of his liberty in violation of the laws of the United States.
I recognize that without finality there can be no justice. But it is equally true that, without justice, finality is nothing more than a bureaucratic achievement. Case closed. Move on to the next. Finality with justice is achieved only when the imprisoned has had a meaningful opportunity for a reliable judicial determination of his claim. Gilbert has never had this opportunity.
A judicial system that values finality over justice is morally bankrupt. That is why Congress provided in § 2255 an avenue to relief in circumstances just such as these. For this court to hold that it is without the power to provide relief to a citizen that the Sovereign seeks to confine illegally for eight and one-half years is to adopt a posture of judicial impotency that is shocking in a country that has enshrined the Great Writ in its Constitution. Surely, the Great Writ cannot be so moribund, so shackled by the procedural requirements of rigid gatekeeping, that it does not afford review of Gilbert’s claim.
Much is made of the “floodgates” that will open should the court exercise its authority to remedy the mistake made by us in Gilbert’s sentence. 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.
One last thought. The majority spends an enormous amount of time arguing that Gilbert is not a nice man. Perhaps. But neither, I expect, was Clarence Gideon, the burglar, or Ernesto Miranda, the rapist. The Supreme Court managed to ignore this legal irrelevancy in upholding the constitutional principle under attack in those cases. Would that we could have also.
I respectfully dissent from the majority’s holding. With the addition of these thoughts of my own, I join in both Judge Barkett’s and Judge Martin’s dissents.

UPDATE:  Be sure to read Scott Greenfield's take on this.
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*Yes, the victims are not all poor.  I know that.