In a series of recent decisions, the Supreme Court overturned a number of circuit court opinions and adopted a more narrow reading of certain federal recidivist sentencing enhancements. Although the decisions revealed that many federal prisoners were sentenced incorrectly and are serving sentences that are much longer than they should be, few of these prisoners have obtained relief in the lower courts on collateral review. Courts have generally dismissed the claims on procedural grounds, citing interests in finality. Indeed, courts often refuse to correct sentencing errors on collateral review, even when both the judge and the prosecutor acknowledge that the prisoner is serving additional years in prison based on a sentencing mistake. After a criminal judgment has become “final,” federal courts appear reluctant to resentence.
Federal prisoners seeking collateral review of sentences are subject to the same — and in some cases stricter — procedural barriers to relief as those seeking the more drastic remedy of undoing their convictions. But sentencing errors should be easier to fix than conviction-based errors because arguments favoring finality are much weaker in the sentencing context. Correcting a sentence is vastly easier than retrying a case, and staleness of evidence is not a major concern at a resentencing because judges, unlike juries, can rely on previous findings. Outside the special context of capital cases, the important distinctions between collateral review of sentences and convictions have received little attention from courts or scholars.
Given the backdrop of extensive litigation in the lower courts about correcting sentencing errors at the collateral review stage, and the possibility that the Supreme Court will need to resolve divergent circuit decisions in this area, now is an important moment to consider whether interests in finality should carry as much weight when a court reviews a sentence rather than a conviction in a collateral proceeding, and when the federal court is reviewing its own decision rather than the decision of a state court. Courts have been overstating the interests in finality of sentences. They should be correcting more sentencing mistakes on collateral review, at least where an intervening decision has narrowed the reach of a substantive sentencing provision.