Pubdate: Wed, 23 Mar 2016
Source: Washington Post (DC)
Copyright: 2016 The Washington Post Company
Contact:  http://www.washingtonpost.com/
Details: http://www.mapinc.org/media/491
Author: Ann E. Marimow

SENTENCED IN ERROR BUT STILL FACING LIFE

Man Could Remain Locked Up for Good Because of Appeal Limits

The judge who sentenced Raymond Surratt Jr. to life in prison didn't 
think he deserved that tough a penalty. His attorneys said it was 
based on bad math. Even the government lawyers who prosecuted him say 
the sentence was a mistake.

Yet they all also agree Surratt might stay locked up forever.

How that came to be is at the heart of arguments to be heard 
Wednesday when the U.S. Court of Appeals for the 4th Circuit takes up 
Surratt's case, which turns on how many times inmates can appeal a 
sentence, particularly if the law becomes more lenient after they are 
sent to prison.

"Raymond Surratt will die in prison because of a sentence that the 
government and the district court agree is undeserved and unjust," a 
judge wrote last summer, siding with Surratt ina divided panel 
decision from the same court.

The judges who ruled against him in the 2-to-1 decision are also 
sympathetic. They just don't think the courts have the power to do 
anything about it.

If Surratt were resentenced today, he would face a mandatory minimum 
penalty of 10 years in prison, likely making him eligible for 
immediate release. The North Carolina man is being held at a federal 
facility in western Virginia, near the border with Kentucky, after a 
2005 cocaine conviction.

Courts throughout the country routinely revisit and revise past 
convictions and sentencing errors. But Surratt's case underscores the 
limits of those reviews and poses the question of how the legal 
system should balance finality with evolving notions of fairness.

Surratt's case comes as advocates for criminal justice reform, 
including President Obama and lawmakers on Capitol Hill, are working 
to roll back decades of prison sentences, set down during the 
nation's war on drugs, that they see as excessively harsh.

The president is expected to use his clemency powers to commute the 
sentences of a group of nonviolent drug offenders in the coming 
weeks, but there are still thousands of pending applications.

Until the Surratt case, no federal appellate court has considered 
whether it has a way to fix a mistake of its own making when the 
error is as severe as a mandatory life sentence.

"The issues in this case are basic to the fairness of federal 
criminal justice," the government said in its brief on behalf of 
41year-old Surratt.

If the court's initial panel ruling against Surratt stands, the 
government says, the court will be shutting down the possibility of 
"relief for even those serving the longest sentences, based on the 
plainest of legal errors."

In a sign of the importance and complexity of the issue, the 
government's case is being argued before the full court in Richmond 
by a top deputy from the U.S. solicitor general's office, Michael R. Dreeben.

With prosecutors and defense lawyers in the unusual position of being 
allied for Surratt, the appeals court panel appointed a Georgetown 
University law professor to argue the other side. The panel ended up 
agreeing with him in July.

Steven H. Goldblatt, who runs Georgetown's appellate litigation 
program, and the majority say that there is value in finality in the 
legal system and that Congress has given federal prisoners another 
shot at challenging their sentences only in the narrowest of circumstances.

"Although one might find it tempting to put finality concerns aside 
for the sake of self-designed notions of fairness," the majority 
said, it 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."

When Surratt pleaded guilty to conspiring to distribute at least 50 
grams of cocaine in western North Carolina, he was 31 and one of 19 
members of a large drug ring. Surratt had been caught three other 
times on lesser cocaine-related charges.

As part of his 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.

At sentencing, prosecutors said Surratt's cooperation efforts were 
"halfhearted" and had not furthered their investigation. Even though 
sentencing guidelines recommended a maximum penalty of about 20 
years, the judge said he had no choice but to impose a mandatory life 
sentence because of Surratt's earlier drug convictions. He called the 
penalty "undeserved and unjust."

The conviction and sentence were upheld after Surratt's initial appeals.

Six years later in 2011, judges for the 4th- Circuit, which includes 
North Carolina, issued a decision that overruled past practice. The 
ruling corrected the court's understanding of how defendants' 
previous state-level convictions in North Carolina should be factored 
into a judge's calculations for determining the length of prison terms.

For Surratt, the new interpretation meant that his prior convictions 
should not have triggered a mandatory life term.

Surratt has asked for one last chance to be resentenced under the new 
rules. The government says he should get it, arguing that courts 
should be allowed to reconsider cases-even when a prisoner has 
exhausted his initial appeals - when it comes to fixing "fundamental 
defects" or errors.

In its decision last summer, the panel majority said it was "not 
unsympathetic to his claim."

Allowing Surratt to challenge his sentence, however, 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 by Judge G. Steven Agee, 
who was joined by Chief Judge William B. Traxler Jr.

Prisoners can try to reopen their cases only in rare situations, such 
as when new evidence is discovered or when a change in law means the 
offense in question is no longer a crime.

Surratt's case, according to the panel majority, is not the type of 
exception Congress envisioned: He is not innocent, and his sentence 
did not exceed the maximum penalty set for his offense by Congress.

In his strongly worded dissent last summer, Judge Roger L. Gregory 
responded that the only punishment more severe than a life sentence 
would have been death.

"What a perverse result, to have suffered a fundamental sentencing 
defect, and then to be punished for not having received the death 
penalty," Gregory wrote.

If the court sides with Surratt, the panel majority said, the statute 
would become "a catchall" for prisoner challenges for "perceived 
errors big and small."

Besides, the majority said, Surratt is not without other options. 
Congress could amend habeas corpus law to allow for cases such as 
this one. The government, which is already arguing on Surratt's 
behalf, could also help him seek clemency from the president.

"It is within our power to do more than simply leave Surratt to the 
mercy of the executive branch," Gregory wrote. "To hope for the right 
outcome in another's hands perhaps is noble. But only when we 
actually do the right thing can we be just."

Sari Horwitz contributed to this report
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MAP posted-by: Jay Bergstrom