Getting Out of Jail Free: Sentence Credit for Periods of Mistaken Liberty

Abstract

This article explores the surprisingly common problem of what happens when a defendant is mistakenly not taken into custody after a sentence to prison, or is kicked out of prison before completing their term. At one time the law followed the strict rule that no credit was available regardless of an egregious governmental mistake; a person told to go home could be picked up years or decades later to serve a sentence she had been told was completed. More recently, courts have awarded credit for mistaken release, so long as the discharge was not by the procurement of the defendant, and, if the defendant knew a mistake had been made, she brought it to the attention of the authorities. This article argues that the doctrine survived the Sentencing Reform Act, and that it still serves an important function in the criminal justice system, encouraging the state to be careful in calculating and executing sentences.

Keywords: sentencing, mistaken release, execution of sentence

JEL Classification: K14, K42