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Serving Extra Years in Prison, and the Courthouse Doors Are Closed

The Justice Department reversed its longstanding position, essentially endorsing an opinion Justice Neil M. Gorsuch wrote when he was an appeals court judge.Credit...Sait Serkan Gurbuz/Associated Press

WASHINGTON — It is one thing for a new administration to switch sides in a legal dispute. That is merely unusual. It is another to urge the Supreme Court to deny review in a case that would test whether the government’s new position is correct.

In a Supreme Court brief filed last month, the Justice Department tried to have it both ways. It told the justices that it no longer believed that some federal prisoners serving longer prison terms than the law allowed were entitled to challenge their sentences in court.

For the last 16 years, the Justice Department had taken the opposite view. It said so in at least 11 Supreme Court briefs. You might think the Supreme Court should settle things.

But the department urged the justices to refuse to hear an appeal from Dan C. McCarthan, a Florida man who said he was sentenced to seven more years than the law allowed. It did so even as it acknowledged that the legal question was significant and that the department’s new position could lead to harsh results, condemning inmates to serve out unlawful sentences.

The administration’s request that the Supreme Court deny review in Mr. McCarthan’s case was “incredibly unseemly” and “not a good look for the Department of Justice,” said Leah Litman, a law professor at the University of California, Irvine, and an authority on the complicated web of statutes that govern post-conviction challenges from federal prisoners.

The Justice Department’s litigation two-step also drew a sharp response from Mr. McCarthan’s lawyers, who include Kannon K. Shanmugam, a partner at Williams & Connolly.

“There is nothing inherently wrong with a new administration’s changing position on a question before this court — although it is rare on a question involving the administration of the criminal justice system,” Mr. Shanmugam wrote in a brief filed last week. “But when the government changes position on a concededly important question that has divided the circuits, it should at least have the courage of its convictions and be willing to defend its new position on the merits in this court.”

Nine federal appeals courts allow the challenges, while two do not.

The new case, McCarthan v. Collins, No. 17-85, started in 2003, when Mr. McCarthan pleaded guilty to a federal gun charge. That conviction would ordinarily have subjected him to a maximum sentence of 10 years. But the judge sentenced him to more than 17 years under a federal law that requires longer terms for career criminals.

A career criminal, the law says, is one who has been convicted of at least three serious drug offenses or violent felonies.

One of the convictions that justified Mr. McCarthan’s extra seven years was for escape. In 1988, he walked away from the Tampa Community Corrections Center without permission. The center was unsecured, and Mr. McCarthan was allowed to leave it to go to work.

Leaving the center without permission was a felony. But was it a violent felony?

When Mr. McCarthan was sentenced, courts treated all escapes as violent. As the United States Court of Appeals for the 11th Circuit, in Atlanta, put it in 2001, an escape “does present the potential risk of violence, even when it involves a ‘walkaway’ from unsecured correctional facilities.”

The Supreme Court rejected that position in 2009, and the 11th Circuit naturally followed suit. “A ‘walkaway’ escape is not a ‘violent felony,’” the court ruled in 2009, six years after Mr. McCarthan was sentenced to extra time based on just such an escape. He then asked the courts to take another look at his sentence.

In March, the 11th Circuit rejected Mr. McCarthan’s challenge. The vote was 7 to 4, with the majority saying that Mr. McCarthan had filed his challenge too late under a federal law that places strict limits on habeas corpus petitions.

But the law has an exception, enacted in 1948, for cases in which the ordinary procedure “is inadequate or ineffective to test the legality” of a prisoner’s detention.

The Justice Department had long agreed that the exception applied in cases like Mr. McCarthan’s. It said so in Mr. McCarthan’s own case before the 11th Circuit.

Since the government and Mr. McCarthan agreed that he should at least be allowed to present his challenge, the 11th Circuit appointed a lawyer to argue the opposite position. Then it accepted the appointed lawyer’s argument, which was based on a technical analysis of various statutory provisions.

Only one other federal appeals court has interpreted the 1948 law to bar challenges like Mr. McCarthan’s. In 2011, the United States Court of Appeals for the 10th Circuit, in Denver, ruled that a prisoner who had pleaded guilty to money laundering in 1999 could not challenge his conviction after the Supreme Court, in a decision issued nearly a decade later, undermined the prosecution’s theory.

The 10th Circuit’s majority opinion was written by Judge Neil M. Gorsuch, who joined the Supreme Court this year. His 2011 opinion, Professor Litman wrote in January, before his nomination, “makes one wonder what a Justice Gorsuch would mean for criminal justice at the Supreme Court.”

In 2011, the Justice Department criticized Judge Gorsuch’s opinion. Last month, it endorsed it.

Mr. McCarthan, the department’s brief said, should have argued from the start that his escape was not a violent felony, even though the law at the time was squarely against him. He should have asked “to have the adverse precedent overturned,” the brief said. It was now too late to raise the question, the brief said.

The department said it was “working on a legislative proposal” to address the gap in the law. It added that Mr. McCarthan could ask President Trump for clemency.

Follow Adam Liptak on Twitter: @adamliptak.

A version of this article appears in print on  , Section A, Page 13 of the New York edition with the headline: Serving Extra Years in Prison, and the Courthouse Doors Are Closed. Order Reprints | Today’s Paper | Subscribe

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