« Recapping the capital year | Main | More Kerr on Carrington and mandate recall discretion »

December 15, 2006

Distinguishing finality interests between convictions and sentences

As I await more responses to why the Ninth Circuit's Carrington ruling should be troubling (query here), let me spotlight key distinctions between finality interests regarding convictions (especially state convictions) and regarding sentences (especially federal sentences).  These distinctions are, in my view, critical to a complete understanding of the dynamics of retroactivity doctrines.

Teague, the 1989 SCOTUS case defining modern retroactivity doctrine, was about whether and when a new federal constitutional rule ought to disrupt final state convictions.  Structural concerns about finality are at their zenith here or else every long-ago convicted state defendant (even those who finished their sentence decades before) might run to federal court seeking to have a long-ago conviction wiped off the books.

Carrington, in sharp contrast, concerns whether a new federal constitutional rule ought to allow reconsideration of a federal sentence still being served.  One might argue that there are no finality concerns because the on-going sentence under challenge is not final.   Moreover, the result of the challenge won't wipe out a long-ago conviction, it will only (perhaps) alter an on-going sentence.

Some recent capital rulings help put the conviction/sentencing distinction in sharp relief.  After Atkins and Roper declared certain defendants ineligible for the death penalty, few asserted that we should still execute all the now-ineligible death row inmates that were sentenced to death before these rulings.  If "sentence finality" is so important, we should still be execute all the mentally retarded and juvenile capital defendants sentenced before Atkins and Roper.

December 15, 2006 at 09:51 AM | Permalink


TrackBack URL for this entry:

Listed below are links to weblogs that reference Distinguishing finality interests between convictions and sentences:


The Atkins / Roper analogy is inapt, as their rules fall under the Teague exception for rules that prohibit a certain kind of punishment for a class of defendants. A comparable exception exists for convictions.

Posted by: | Dec 15, 2006 11:01:48 AM

But why does Teague make this exception? It is because we realize the interests of finality are not an absolute trump on all other interests. My point is that, if this balance is sometimes appropriate for murderers, why not also for some other defendants?

Think about principles folks, not doctrines. Doctrines exist to serve principles, not vice-versa.

Posted by: Doug B. | Dec 15, 2006 11:33:32 AM

Don't patronize me, though perhaps I was too terse in my explanation. The point of your Atkins / Roper analogy, I take it, was that sentence finality isn't all-important, and that this somehow is different from conviction finality (since the cases somehow put the "conviction/sentencing distinction in sharp relief"). I agree that sentence finality isn't all-important; Teague decided that cases like Roper and Atkins are in the limited class where the finality interest yields to another interest recognized as more important. My point, embedded in the last sentence of the post, was that sentence finality and conviction finality are on equal footing here -- Teague and its progeny made comparable exceptions for both, and presumably for similar reasons. There is no basis for relying on those decisions as supporting your sentencing / conviction distinction.

Posted by: | Dec 15, 2006 11:47:16 AM

Sorry for not upacking your quick point, which I now better understand. And you are right that Atkins/Roper as a Teague exception do not hinge on my distinction. But they do spotlight that finality feels different when we are looking at sentencing issues. Sorry to not give you full credit for the insight, and I suppose a better analogy might be our willingness to find ineffectiveness for capital sentencing more than for other parts of a trial. When only an on-going sentence is at stake, our balances change. That's the chief point of this post, as well as a chance to spotlight the state/federal issue as well.

Thanks, whomever you are.

Posted by: Doug B. | Dec 15, 2006 12:02:24 PM

Prof. Berman,

I have not yet seen you address (though I may have missed it in replies to comments) how the routine circumstance of a judge who would have sentenced differently (and felt and still feels really really strongly about it) under the guidelines can possibly, under any modestly-respectful-of-language understanding of the terms, constitute the necessary "extraordinary circumstance" that would justify recalling a 15 year old or six year old mandate?

It's simply a dodge to accuse those who think this decision absurd of being resistant to "too much justice;" it focuses only on the sentencing aspect of the case (it also presumes that the non-guidlines sentence would be "more just" in some absolute sense). Justice simpliciter here presumably includes respect for the precedents invoked, and people's resistance to upending them might also stem from the belief that "justice" will not necessarily be served by giving all and only liberal judges the chance at a retroactive "do-over" any more than letting all the "hangin' judges" out there who felt the guidelines were sometimes too lenient (they exist, too, and have feelings) another bite at the sentencing apple. My point is not to bash liberals, but to say that the "justice" involved here is not a Platonic Ideal, but a procedural compromise--it includes our instincts about finality as well as about the Sixth Amendment and a host of other factors.

To blow up a given judge's feelings as if they are somehow the obviously overriding factor in maximizing justice misunderstands both Platonic and procedural justice and their (hoped for) relationship in our system.

Thanks for the very useful blog.

Posted by: Extraordinary Circumstance | Dec 15, 2006 12:44:59 PM

Thanks for your comment, Extraordinary Circumstance. Perhaps the key is that I view --- as surely did the framers --- any decision by the state to deprive a person of their freedom to be subject to extra and continuous scrutiny. Some "hangin' judges" might like to convicted based on clear and convincing evidence or to impose the death penalty for drunk driving, but we tilt the system (for lots of good reasons) in favor of individual liberty and limited government power.

Again, realize that the defendants serving unconstitutional sentences have no other resort. After Booker, no other branch or institution is seeking to vindicate their interest in liberty: DOJ is not concerned with their fate and neither seems Congress. That fact alone is sad, though perhaps not extraordinary. Add the fact that the sentencing judge has urged any possible legal remedy, and I think this meets my standard of extraordinary circumstance.

How's that?

Posted by: Doug B. | Dec 15, 2006 1:26:37 PM

Let's take this hypo: Federal criminal is sentenced under unconstitutional procedure understood at the time to be unconstitutional. He appeals with no success. Habeas no success. Should he have absolute right to file again?

His situation is no different from the situation here. Yet no one would argue he gets to get his case reopened.

At the end of the day, the legal system has to operate within rules as understood at the relevant time. Criminals are not entitled to more. And let's not forget, they are criminals who have gravely transgressed society's rules. Why should society take on the burden of re-evaluating thousands of sentences for the sake of a bunch of criminals?

The idea that them serving constitutionally excessive sentences is a waste misses the point. We let criminals go when the constable blunders not because there is a net social benefit to letting the particular guy go, but because we have decided that doing that in such cases is beneficial. Having criminals in jail, generally speaking, is a net social good.

Posted by: federalist | Dec 15, 2006 1:52:20 PM

1. As you note in a prior post, it's strange to have the sentencing judge's harrumphing during the initial sentence be the thing that converts a final sentence into an "extraordinary circumstance." If you accept the notion that there is some injustice inherent in the non-retroactivity of Booker, it doesn't seem to me that the injustice is any more acute when the sentencing judge happened to wear his feelings on his sleeve. I think that much of the objection to due to a visceral revulsion at the arbitrariness of picking Carrington out of all the others.

2. What would you say if a judge made the same plea for recalling a mandate on the ground that he would have sentenced the defendant to the statutory max had the Guidelines not interfered?

3. This "extra and continuous scrutiny" is provided by the availability of habeas corpus, no?

Posted by: Bill | Dec 15, 2006 1:52:26 PM

Prof. Berman,

With all due respect, it does not go very far at all to explain the extraordinariness of this situation, either in ordinary language terms, or, more to the point, in terms fo the case history. Prof. Kerry has ably shown this by detailing Calderon and its history over at Volokh.

I never doubted that "your standard" of extraordinary had been satisfied. But in the ordinary language sense, extraodinary would mean something like rare, and I assume we can both agree that judges who feel awful about sentences the guidelines forced them to impose are going to be far from rare. And the Calderon sense of the term, meant to be binding on the panel here, is a higher standard of extraordinariness (as I read it) than even our ordinary language sense.

In addition to the regretful judges, it appears that you regard the "sad" fact of Booker's non-retroactivity as an extraordinary circumstance(at least that's how I read the second paragraph of your reply). This simply cannot be as a matter of law or common sense.

So neither of the two factors you adduce strike me as extraordinary, though I share at least some of your sadness at the lack of Platonic Justice that seems likely as a result here.

Posted by: Extraordinary Circumstance | Dec 15, 2006 1:57:13 PM

[My previous post was meant as an answer to Prof. Berman's post, not federalist's]

Federalist, what's your point? Some actually would answer yes to your first question and ask how you could sleep at night after answering no.

Your third paragraph is the typical 1L objection to any kind of procedural rights for criminals. Viscerally, it makes some sense, but (1) the moral right of the state to punish criminals is not absolute, and its continuing legitimacy depends somewhat on the state's willing to accept responsibility for correcting its errors when they occur, and (2) the Supreme Court has said that, under some circumstances, criminals can have their sentences reexamined (see Prof. Berman's reference to Atkins and Roper in the prior post).

Your fourth paragraph makes little sense to me. We let criminals go when the constable blunders because (1) we think that the cost of letting the criminal go is worth the benefit of deterring hundreds more similar constabular blunders, and (2) the Supreme Court has said that the Constitution requires it.

Posted by: Bill | Dec 15, 2006 2:01:45 PM

Extraordinary Circumstance clarifies the two key premises of his take: "extraordinary" must mean "rare" and it is not "rare" that judges "feel awful about sentences the guidelines forced them to impose." Here's my counter:

1. "Extraordinary" does not always have to mean "rare." A home run is an extraordinary event in a baseball game, but one or two happen in most games. Perhaps the Ninth Circuit believes "extraordinary" should mean "rare"; if so, it should clarify its legal standards.

2. It is sad that, because so many defendants were given sentences judges thought too long, none of them are "rare" and thus none should get relief. Put differently, lots of other people suffered unjust sentences, so why should you get justice. That's why I do think this case raises really the issue of whether we fear too much justice for defendants suffering from sentences that judges think are too long.

Posted by: Doug B. | Dec 15, 2006 2:41:28 PM

Well, I sleep pretty well. The bottom line is that the sovereign should not, generally speaking, have to expend resources to hold onto its wins when it acted in accordance with then understood notions of due process. Without getting into exceptions to that notion (e.g., Atkins and Roper, which I consider illegitimate and lawless), such a proposition seems correct to me. In America, it takes a lot to put a guy away (theoretically anyway, not talking about pleas). And you want to give thousands of criminals even more process. For what? In addition, how is the sovereign supposed to retry facts not found by a jury at this late date? Clearly, criminals aren't entitled to the windfall that would arise (because, presumably, the gov't would have offered more at trial to justify the weightier sentences). Society has a reliance interest in the sentences imposed. To upset that interest is not justice, but instead a "let's hug a criminal today" mindet masquerading as a fastidiousness for the law.

I'll tell you what--all of these criminals for whom you are so solicitous, let them live near you, in your neighborhood. As for the truly unfortunate, write letters to the president and/or congress.

Judge Pregerson, with his sidekick Judge Noonan, have arrogantly decided to flout the law--how then would they be able to complain if litigants ignored their orders?

Posted by: federalist | Dec 15, 2006 3:13:15 PM

"Let's take this hypo: Federal criminal is sentenced under unconstitutional procedure understood at the time to be unconstitutional. He appeals with no success. Habeas no success. Should he have absolute right to file again?

His situation is no different from the situation here. Yet no one would argue he gets to get his case reopened."

Law school warps minds. That's all there is to it.

The federalist's outrage in the paragraph quoted above is that a criminal might have access to the courts and not to the fact that a series of judges, apparently knowingly, collaborated to deprive him of his undoubted constitutional right. I think the situation in your hypothesis is nothing short of scandalous, and the supposed interest in finality is flimsy in comparison to the necessity to vindicate constitutional rights.
After all, where in the text of the constitution do the words "final" or "finality" occur? I think somebody needs to get his or her priorities in order.

Posted by: David Lewis | Dec 15, 2006 3:43:24 PM

Warped mind? Nice. Just because I don't want to have a bunch of criminals wasting resources and getting released. They can live near you.

This recall mandate, let criminals be resentenced is completely prejudicial to the state. How is the state supposed to prove, years later, some of the ancillary facts necessary to get the sentence it got? Too bad you say. Well the world just doesn't work like that.

Mr. Lewis, why don't you find 10 criminals whose sentence you consider unjust and conduct a letter-writing campaign on their behalf.

Posted by: federalist | Dec 15, 2006 4:45:43 PM

For all the nonlawyers out there (hopefully many), you are probably as confused as I am. What is it all this about?

Evidently, the country has been though it before. In 1916 the Supreme Court found in U S, EX PARTE , 242 U.S. 27 that judges violate the separation of powers when they sentenced other than as the legislature proscribed. That makes sense. But it also resulted in injustices.

KILLITS DECISION - Before probation was a
sentencing option in the federal courts, some
judges–including Judge John M. Killits of the
Northern District of Ohio--were, in effect, granting
“probation” by suspending sentences indefinitely
until the Supreme Court, in Ex parte United States,
242 U.S. 27 (1916), known as the Killits decision,
held that federal courts had no inherent power to
suspend sentence indefinitely and suggested
probation legislation as a remedy.

1925 FEDERAL PROBATION ACT - The Act, which
provided for the establishment of a probation system
in the U.S. courts, except in the District of Columbia,
gave the court the power to suspend the imposition
or execution of sentence and place the defendant on
probation for such period and on such terms and
conditions as it deemed best. (probation history)

Same debate, but more severe, as the debate now centers not on probation, but on mandatory years and years compared to less years and years.

The real issue is political, and the conservatives framed it perfectly. "In Crime and Moral Retribution" Robert James Bidinotto asks "What is "justice?" What is "crime?" And what should a criminal justice system be doing?"

He then goes on to list heinous crimes by offenders "who slipped through the cracks." Of course John Evander Couey should have been stopped before he could kill Jessica Lunsford. No one can argue with that, so who cares about Carrington? Just another criminal, like Couey. Any effort to make the distinction is a "bleeding heart liberal."

A Google of Robert James Bidinotto does not find any critique of his writings on crime until page 9 of the search, and then there is the rather lonely The Forgotten Importance of Civil Liberties, by Jacob G. Hornberger:

"Concerned with ever-increasing crime rates in America, Mr. Bidinotto argued that the solution, at least in part, turned on the curtailment of the safeguards enunciated in the Fourth, Fifth, Sixth, and Eighth Amendments to the U.S. Constitution. Mr. Bidinotto suggested that if Americans just loosened some of the strictures in the Bill of Rights which enabled so many criminals to go free, the crime problem could be significantly alleviated. Not spared from Mr. Bidinotto's attack were civil liberties lawyers as well as such rights as trial by jury, right to bail, right to counsel, protection from unreasonable searches and seizures, and protection from self-incrimination. [Note: Nancy Grace makes the same argument.]

"Contrary to popular opinion and what Americans are so often taught by their government officials, the procedural safeguards in the Constitution are not mere technicalities to protect the guilty. They are instead well-established safeguards to protect the innocent — those who have been falsely accused of a crime by their own government officials. If Americans in the latter part of this century forget this vital principle, they do so at their peril."

It is a political debate as important as the debate over the Bill of Rights at the founding of our nation, and there is a strong and popular movement to limit the Bill of Rights, including habeas corpus. Now that citizens see what Bush is doing with the politics of fear in the name of terrorism, they might see the similarities. The only solution is to argue against the highly emotional victims' rights argument, which no one can really argue anyway because no one is actually anti-victims' rights, with facts like those found in Does Prison Harden Inmates? A Discontinuity-based Approach.

"So let's say one inmate receives a score of 59, and another receives a score of 60. All told, the second guy really isn't that much more dangerous than the first. But the first guy gets shipped off to a "minimum-security" prison, and the second guy to a "low-security" prison. That's just the way the rules work. Now what Chen and Shapiro found is that the guy who gets bumped up to a higher-security prison is twice as likely to commit a crime in the three years after he's released. The prison conditions themselves are the ostensible cause here." (Quote from http://plumer.blogspot.com/)

Like "Scared Straight," unduly harsh punishment and conditions actually increases crime. There are many, many studies like the last one that refute Bidinotto's attack as simplistic at best and propaganda at worst. Evidence-based solutions are far better than Mr. Bidinotto's emotional based argument. Arguing against the use and abuse of victims' rights and how it can in many ways make the public less safe is the rational argument. Until there is some progress, there will be no outrage over a 30 year sentence here in the states like the outrage in Australia over a similarly situated 20 year sentence.

Posted by: George | Dec 16, 2006 4:08:22 PM

But people need to know the foundations other than Mr. Bidinotto:



Vengeance is Mom's: Meet Dianne Clements, the soccer mom who has done as much as anyone to ensure that Texas' killing chamber remains the nation's busiest.


Strong Arm of the Law: A small union of California prison guards wields enormous political power (largely through their two victims' rights groups, which were a influences in passing the California Three Strikes law).

That is just a short list.

Posted by: George | Dec 16, 2006 4:14:57 PM


Posted by: George | Dec 16, 2006 4:24:03 PM

Post a comment

In the body of your email, please indicate if you are a professor, student, prosecutor, defense attorney, etc. so I can gain a sense of who is reading my blog. Thank you, DAB