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May 8, 2014

Finality foundations: is it uncontroversial that "conviction finality" and "sentence finality" raise distinct issues?

As explained here, I am "celebrating" the official publication of my new article titled "Re-Balancing Fitness, Fairness, and Finality for Sentences" (which is available in full via this SSRN link) through a series of posts intended, in the words of my article's introduction, "to encourage more thorough and reflective consideration of the values and interests served — and not served — by doctrines, policies, and practices that may allow or preclude the review of sentences after they have been deemed final." This initial substantive post will set out a foundational conceptual idea from my article — an idea which drives much of my thinking about sentence finality and seems somewhat obvious to me, but one that others might consider controversial.   Here is how I set up the idea in my article (with a lengthy footnote omitted):

The issue of sentence finality is necessarily connected, of course, to the status and treatment afforded final criminal judgments more generally.  For more than a half-century, a robust jurisprudential debate has swirled in the Supreme Court and in academic circles concerning federal court authority to review final state criminal judgments using the historic writ of habeas corpus.  But courts and scholars analyzing whether and how defendants should be able to attack final criminal judgments have too often failed to explore or even recognize that different conceptual, policy, and practical considerations are implicated when a defendant seeks only review and reconsideration of his final sentence and does not challenge his underlying conviction.  It is curious and problematic that modern finality doctrines and debates rarely distinguish between final convictions and final sentences: curious because courts and commentators have long recognized that the determination of guilt and the imposition of punishment involve distinct stages of criminal adjudication calling for different rules and procedures; problematic because the strongest justifications for limiting reconsideration of final convictions are less compelling with respect to final sentences.

Stated a bit more directly, a foundational conceptual idea in my work here is that, whatever one may think about the importance of preserving final convictions and/or limiting ways in which final convictions can be reviewed or reconsidered, there are necessarily distinct concerns and issues surrounding the treatment of final sentences.  Perhaps in part because I am a sentencing geek, it seems so very obvious to me that, in just about any and every setting, the legal questions and policy debates that surround sentences are distinct in kind from the legal questions and policy debates that surround convictions.  But maybe this instinct and insight in the context of finality discussions is more controversial than I realize.

Prior post in this series:

May 8, 2014 at 12:29 PM | Permalink


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This is one of those issues where the theoretical distinction makes sense but in practice is more complicated. The difficulty is that if conviction and sentence become too attenuated from each other then there is a real danger of robbing the conviction of its essential elements. A conviction is often simply a means to sentence, and without the appropriate sentence the conviction is meaningless.

Posted by: Daniel | May 8, 2014 1:35:40 PM

An interesting consequence of this suggestion might be a return to the old parole system -- returning to the Executive Branch, through the Parole Commission, the ultimate authority to determine a defendant's discharge date.

Posted by: observer | May 8, 2014 2:12:41 PM

This is just a question. If a conviction is a means to sentence but the jury does not know what the sentence is, does that mean the conviction is meaningless?

Posted by: beth | May 8, 2014 2:35:25 PM

@Beth. The jury's verdict is not meaningless at the moment it is rendered, however, the verdict exists continuously with the sentence and it can be made practically meaningless by the judge. A good example of this is the recent outcry over the one month conviction given to the man who raped a teenager or the whole debate over "affluezena". In both cases there were convictions and in both cases there was a general sense on the part of the public that the punishment was grossly weak for the crime committed. In fact, these two cases highlight my point: that what the public wants is punishment--the guilty verdict is just the means to get punishment--and when the guilty verdict doesn't produce the expected return people get upset.

Posted by: Daniel | May 8, 2014 4:20:55 PM

My problem with separating sentencing finality from conviction finality is the role that the seriousness of the crime and the impact on the victim should have on the sentencing decision. Treating sentences as less final than convictions (and treating criminal cases as less final than civil cases) means that the lay witnesses to a crime and the victims may be called upon to present evidence on an infinite number of occasions throughout the entirety of the sentence.

I think there is a significant distinction between various different ways of viewing a sentence as less than final. Allowing a court to vacate a sentence fifteen years after it was imposed is probably the most harmful to the interest of witnesses, victims, and accuracy in the sentencing decision. On the other hand, clearly stating up front that a defendant will serve a minimum of 50% of the sentence and then an administrative-type agency (e.g. a Parole Board) will consider an early release from that sentence based on facts not knowable at the time of sentencing (e.g., good conduct in jail, successful completion of treatment programs)is something that puts less of a burden on those involved in the initial case (with a strong caveat that a substantial portion of the sentence should be certain upfront and all participants should be able to determine when the defendant will become eligible for release).

Posted by: tmm | May 8, 2014 4:50:57 PM

Is the reverse true? For example a jury convicts, but is not aware that a lengthy mandatory sentence will be the result? I would think that this would have the same effect on the public perception of just sentencing.

Posted by: beth | May 8, 2014 6:47:55 PM

@Beth, yes I think it's a two-way ratchet. It is a concern about excessive sentences that drives, in part, the whole topic of jury nullification. The jury doesn't want to convict because it doesn't want to expose the defendant to the sentence. However, as a practical it seems that in our society at this time the public tends to get itself up in a lather about what it sees as excessively weak sentences rather than what it sees as excessively harsh sentences (the death penalty might be the lone exception).

Posted by: Daniel | May 9, 2014 2:50:26 AM

Yes, I would agree for sentencing for violent crimes. However, there does seem to be a Jury nullification movement in some states. This movement is mostly centered around gun and marijuana offenses. In these same localities there is a movement for court support for the defendent.

The effectiveness of these movements was best exemplified in the Chris Williams case in Montana when he was convicted, sentenced and in short order resentenced to about 1/6 the time. It appeared to be because of public outcry shortly after sentencing. Now that was an interesting rebalancing of Fitness, Fairness and Finality of a sentence i a very compressed period of time.

Posted by: beth | May 9, 2014 5:37:12 PM

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