Is the Loss of Chance a Fundamental Miscarriage of Justice?

A recent addition to the ongoing discussion regarding sentencing in Federal courts argues that a sentencing error may very well be a miscarriage of justice. The author uses the loss of chance doctrine from civil courts to argue her point in this document. I recommend at least some familiarity with United States v. Booker, 543 U.S. 220 (2005) prior to trying to understand her position.

“For the past half-century, American sentencing has struggled with problems of both indeterminacy and rigidity. Sentencing reforms have vacillated between efforts to make the system more flexible, on one hand, and more predictable on the other. The paradox of the advisory Guidelines system is that it is both flexible and rigid: the Guidelines draw their power simultaneously from judges’ awareness of their advisory nature and from their anchoring effects on judicial decision-making. The current advisory Guidelines system strikes a balance between the harshness of mandatory Guidelines and the pre-1984 indeterminate federal sentencing regime, which created disparities in sentences that implicated issues of bias against minorities.”[1]

After US vs Booker made the Guidelines “merely advisory,” there have been different rulings from different Circuits on whether an appeal regarding a sentence is cognizable. As some District’s misapplied the sentencing guidelines, the Circuits disagreed whether the sentence was appealable. The differing opinions stem from the question of whether fairness or finality is more important. The 7^th, 8^th and 11^th Circuits found in favor of finality in order to minimize systemic burdens. The 4^th found that fairness is more important.

The author employs the loss of chance doctrine from civil law to explain why a Guidelines error should be viewed as a fundamental miscarriage of justice and hence cognizable. “Guidelines error represents a lost opportunity for a better outcome and the value of that loss to the person harmed. Courts disagree about whether missing out on the chance of a lower sentence can ever be a fundamental miscarriage of justice.” “The idea underlying this doctrine is that the opportunity for a better outcome itself has value, such that deprivation of that chance may be a legally actionable harm.” [2] She then presents the other side of the argument, explaining that the sentences in question are lawful, and even after appeal, the judge could order the exact same sentence again. You can find this part of the discussion on pages six and seven of the .pdf.

[1] Huddleston, K. (2015). Federal Sentencing Error as Loss of Chance. Yale Law Journal, 124(7), 2677.

[2] Huddleston. 2668.