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August 27, 2012

"Beyond Finality: How Making Criminal Judgments Less Final Can Further the 'Interests of Finality'"

The title of this post of this notable new article now available via SSRN by Professor Andrew Chongseh Kim. Here is the abstract:

Courts and scholars often assume that granting convicted defendants more liberal rights to challenge their convictions and sentences would necessarily harm society's various interests in "finality," the most prominent of which are resource conservation, efficient behavior by defense counsel, and deterrence.  The extent to which convicted defendants should be allowed to challenge their judgments depends, according to the common analysis, on how much society is willing sacrifice those interests to validate defendants' rights. This article argues that although expanding defendants' rights on post-conviction review inherently makes criminal judgments less "final," it does not necessarily harm the interests "finality" presumes to protect.  Rather, when the financial costs of wrongful incarceration, resource constraints on defense counsel, and the effects of legitimacy on compliance are considered, it becomes clear that granting more liberal review can often conserve state resources, will rarely affect the behavior of defense counsel at trial, and can help reduce crime.

First, the assumption that defendants' post-conviction rights impose significant burdens on states ignores the costs of wrongful incarceration.  Although recent studies on innocence have demonstrated that successful post-conviction review can produce large incarceration savings, they offer little insight into how significant those savings are compared to the administrative costs of providing the many appeals by defendants who failed to obtain relief on appeal.  This article demonstrates, using the limited data available, that for direct appeals, the wrongful incarceration savings are generally quite substantial compared with the administrative costs of providing those appeals.  Indeed, it is quite possible that some states realize net cost savings by providing direct appeals. The article then identifies specific restrictions on defendants' rights, such as restrictions on relief from plain errors in sentencing that impose net costs on states.  This article argues the existence of such restrictions that harm defendants at net financial cost to states is partly the result of an agency problem in criminal appellate decision making.

Second, although limiting defendants' opportunities to seek relief from errors after conviction may increase incentives on defense counsel to prevent errors at trial, these increased incentives are unlikely to affect the actual behavior of counsel. With respect to strategic behavior or "sandbagging," this article argues that because harmless error rules prohibit relief from errors that did not, in retrospect, affect the outcome of a trial, defense counsel will rarely have incentives ex ante to intentionally sandbag errors. In addition, because most inadvertent mistakes are caused by resource constraints on public defenders, rather than inattentiveness, increased restrictions on post-conviction rights are unlikely to reduce inadvertent mistakes.  Moreover, to the extent that restricting review might actually compel defense counsel to take additional care at trial, because this care must be paid for by the state, it could actually be inefficient.

Finally, this article argues that the traditional finality deterrence argument, which depends heavily on the assumption that prisons effectively rehabilitate offenders, has been severely undermined by social science literature.  Liberalizing post-conviction review, however, could increase incentives on people to obey the law by reducing wrongful convictions and the punishment given to defendants wrongfully convicted.  Although the effects of reduced wrongful conviction are unlikely to affect the incentives of most people, for whom the risk of wrongful conviction is already negligible, they may be significant for at risk populations for whom the risk of profiling and wrongful suspicions are more salient. In addition, studies have demonstrated that the willingness of people to obey the law is influenced heavily on how "fair" or "legitimate" the legal system is perceived to be. Because many restrictions on post-conviction relief may be perceived as procedurally "unfair" by defendants, lifting these restrictions may actually encourage criminals and their associates to comply with the law.

I have long thought that the concept of finality has been badly under theorized, especially in the arena of sentencing law and policy.  Consequently, I am very much looking forward to finding time to read this significant new article on the concept.

August 27, 2012 at 03:53 PM | Permalink


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|| In addition, studies have demonstrated that the willingness of people to obey the law is influenced heavily on how "fair" or "legitimate" the legal system is perceived to be. ||

Which studies? Prof? Anyone?

How about being influenced by how swift and severe the punishment will be?
Or morality...

-- Here's a study or two for you:

"[I]n light of over 50 research studies...membership in the Jewish religion is associated with lower crime rates...The best documented relationship is between church attendance and crime rates...frequent church attenders have lower rates...belief in an afterlife with divine punishment possible...is associated with lower crime rates."~~Lee Ellis
Sociological Perspectives Vol. 28, No. 4 (Oct., 1985), pp. 501-520.

"The 1997 National Longitudinal Survey of Youth shows that students who now worship weekly and who grew up with two married parents are most likely to have received a high school degree....87 percent of students who attend weekly religious services received a high school degree.
In contrast, only 70 percent of those who never worship received a high school degree."
{high school graduation is associated with a lower crime rate}~~www.bls.gov/nls/

Posted by: Adamakis | Aug 27, 2012 5:00:07 PM

I think the author's right that an emphasis on keeping open a vehicle for postconviction review will increase the perception that the law is fair and just.

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Posted by: health | Aug 28, 2012 6:58:49 AM

Probably most Americans (certainly most non-lawyers who believed what their junior-high civics teachers taught them) would be appalled to discover the extent to which justice trails the sometimes competing objectives of efficiency, rigid adherence to procedural complexities and finality.

Certainly I would respect the system more if it were as good at making sure the citizens it incarcerates are actually guilty as it is in sparing its bureaucrats from the bother and annoyance the extra workload might entail.

Posted by: John K | Aug 28, 2012 8:03:44 AM

Gary R. Proctor --

Putting to one side for the moment the considerable difficulties posed by the Double Jeopardy Clause, let me ask you this:

If the name of the game is achieving fair and just outcomes, should we not implement a system to review possibly erroneous acquittals as well as possibly erroneous convictions?

The public is rightly disturbed when an innocent man is sent to prison, but it is also rightly disturbed when a guilty one (e.g., OJ) beats the rap and laughs all the way to his next golf tournament.

Posted by: Bill Otis | Aug 28, 2012 10:17:45 AM

only problem with that ideal bill is we would need a CONSTUTITIONAL AMENDMANT to add a 3rd choice in any trial.

sorry a 4th one. seems the courts themselfs have added a 3rd one. the simple FAILURE to reach a decison.

right now constutitionally a jury legally has two choices. NOT GUILTY or GUILTY!

for what you want to work. you would need a 3rd. INNOCENT!

that way if the jury thinks the sucker is guilty but becasue of whatever reason they can use the not guilty...which could under your ideal be looked at for your "erroneous acquittals" where a "INNOCNET" verdice would be untouchabel.

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