Criminal Law

Correcting, Modifying or Reducing a Criminal Sentence

By Janet Portman, Attorney
Obvious clerical and arithmetic mistakes can be corrected, as can sentences that have no legitimacy at all, such as those that fail to follow the sentencing ranges. Can the defendant end up with a harsher punishment? Read on to find out.

The great majority of convicted criminal defendants serve the sentences that were handed down from the bench, during the sentencing hearing. Except for reductions for good behavior while in custody, these sentences play out as they were announced.

Now and then, however, a convicted defendant can take steps to modify his sentence. Rarely, a court or prosecutor will take the initiative. Here, we explain the circumstances that allow for or result in a sentence that varies from the one initially imposed.

When Can Sentences Be Changed?

As a general rule, once a final judgment has been entered in a criminal case—once the judge has delivered a legally valid sentence—the judge loses the ability to change that sentence unless a specific law gives the court authority to modify it. Notably, these permissive laws do not extend to the imposition of mandatory sentences (sentences that the legislature requires to be imposed).

Federal courts, as well, can modify sentences only in a narrow range of circumstances. The biggest exception in federal cases concerns defendants who are convicted of crimes that now carry reduced, retroactive ranges under the Sentencing Guidelines. These defendants may ask the court for the benefit of the new, retroactive sentencing ranges.

Illegal Sentences

The rule explained above (modifying legal sentences) doesn’t apply to sentences that are illegal. An illegal sentence is one that has no basis in law, or was the result of a clerical error. It is almost always subject to correction, but only according to rules of criminal procedure. In the federal system, a trial court has 14 days from the date of sentencing to correct arithmetical, technical, or other “clear errors.”

Examples of illegal sentences include sentences that resulted from arithmetical or technical error; and those that resulted from an incorrect application of the sentencing guidelines. Further examples of illegal sentences include:

  • A sentence imposed by a court without “jurisdiction.” This means that the court did not have the authority to hear that matter in the first place.
  • A sentence that does not conform to the requirements of the relevant statute. For example, if a statute provides for a sentencing range, and the judge imposes a sentence that is not within that range, the sentence would be illegal.
  • A sentence that is ambiguous as to how and when the defendant must serve it.
  • A sentence that fails to comply with a plea bargain, or is inconsistent with the judge’s oral pronouncement from the bench.

Importantly, a claim that a sentence is unconstitutional does not bring that claim within the laws that allow for the correction of illegal sentences (that claim must be raised in an appeal of the underlying conviction). Similarly, a claim that the judge was subject to impermissible motivations when choosing and imposing the sentence must be raised on appeal, not in a motion to correct an illegal sentence.

Defendants who successfully argue on appeal that their sentences were illegal do not obtain a reversal of their convictions. Instead, the case is sent back to the trial court for re-sentencing.

Normally, defendants are limited on appeal to raising issues that were argued at trial, which they lost. For instance, a defendant cannot argue on appeal that his confession was improperly admitted unless he objected to its admission at trial. But when it comes to illegal sentences, the appellate court can take up the issue even if the defendant didn’t object to it at sentencing time.

Reducing Sentences for Those Who Cooperate

Most of us are familiar with the “cooperating witness” scenario, wherein a person charged with or even convicted of a crime agrees to cooperate with the prosecution, giving information or testimony (or both) to aid in the investigation and prosecution of someone else. These cooperators do so for a price: A reduced charge or light sentence for those not yet convicted; or a promise of a reduced sentence for those whose cases are final.

The federal system, like many state systems, provides by rule for reducing the sentences of convicted and sentenced cooperators. (Federal Rule of Criminal Procedure 35(b).) Within one year of conviction, a cooperating defendant who provided “substantial assistance” may petition the court for a reduction, which must accord with the Sentencing Commission’s guidelines on reductions.

Compassionate Modifications of Federal Sentences

Federal law allows a narrow range of defendants to ask the court to reduce their sentences, based on the length of their incarceration, their age, and their apparent lack of dangerousness. Under 18 U.S. Code Section 3582, if the Director of the Bureau of Prisons so recommends, a judge may modify a prison term for a prisoner who has served at least 30 years in prison, who is at least 70 years old, and whom the Director feels is not a danger to other people or the community.

Questions to Ask Your Attorney

  • I had a court-appointed lawyer at trial, and I’d like to file a motion to modify my sentence. Does that lawyer have to represent me? If not, can I get another appointed lawyer?
  • A prosecutor promised to ask the judge to reduce my sentence if I "worked" for him in prison and gathered information on another case. I've been helping for over a year, and he still hasn't asked for the reduction. Can we take him to court and force him to ask for the reduction?
  • Do prison officials have to give access to the law library so that I can file a motion for sentence reduction?
  • If I'm granted a reduction, will I get credit for the time I served between the date that I filed my motion and the date the judge made a decision?
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