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May 9, 2014

Is it fair to read the Constitution as evidence the Framers were not fans of finality?

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 exploring sentence finality doctrines and practice.  As explained in this prior post, one of the central themes of my piece is 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.  But, before I dig too deeply into distinguishing conviction and sentence finality, my article starts by pondering briefly what might have been the Framing Era perspective on finality considerations more generally.  In so doing, I have this to say about some key provisions in each Article of the US Constitution:

The Constitution’s text can be read to suggest the Framers were decidedly eager to provide or preserve opportunities for defendants to seek review and reconsideration of their treatment by government authorities. Article I, Section 9 instructs Congress that the “Privilege of the Writ of Habeas Corpus shall not be suspended,” Article II, Section 2 provides that the President “shall have Power to grant Reprieves and Pardons for Offences against the United States,” and Article III, Section 2 provides that the Supreme Court “shall have appellate Jurisdiction.” These provisions codify in our nation’s charter all the traditional mechanisms long used by individuals to challenge or seek modification of the exercise of government power through criminal justice systems.  These provisions alone may not support a strong originalist claim that the Framers disfavored treating criminal judgments as final.  Nevertheless, by precluding Congress from suspending habeas review, by empowering the President to grant clemency, and by authorizing the Supreme Court to hear appeals, the Constitution ensured that criminal defendants in a new America would have various means to seek review and reconsideration of the application of governmental power even after an initial criminal conviction and sentencing.  More broadly, given the checks and balances built into our constitutional structure and the significant individual rights and criminal procedure protections enshrined in the Bill of Rights, one might readily conclude that the Framers were likely far more concerned with the fitness and fairness of criminal justice outcomes than with their finality.

Because I am neither a constitutional historian nor a hard-core originalist jurisprude, I do not devote much more time to these matters in my article.  Still, as I suggest in a footnote, given "the significant attention now paid to various theories of originalism in modern constitutional litigation and jurisprudence in recent years, modern criminal justice advocates and scholars might unearth interesting and consequential findings if they were now to engage in an in-depth historical exploration of criminal justice finality concerns and issues through U.S. legal history."  Ergo the question in this post is an effort to encourage engagement with these historical ideas (and also to solicit views on whether folks think further historical inquiry here might be important for modern jurisprudential developments).

Prior posts in this series:

May 9, 2014 at 01:44 PM | Permalink


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// “the Constitution ensured that criminal defendants in a new America would have various means to seek review and reconsideration
of the application of governmental power even after an initial criminal conviction and sentencing." //

Yet they still speedily effected executions, the first federal one in less than one year after apprehension;
[now that's "finality"]
the 10-20 years of today’s procedure is ridiculous.
1. "The first federal execution was on June 25, 1790," {RI had been the last state to ratify the Constitution on May 29, 1790;}
2. The "First US Congress Establishes Federal Death Penalty" on April 30, 1790, {In 1787 the 5th and 14th Amendments recognizing it with due process}.

~~Pbs.org, Gwu.org, Procon.org, ExecutedToday.com

Posted by: Adamakis | May 9, 2014 3:00:55 PM

The openness of the Founders to deviations from finality in criminal justice need to be understood, I think, against the prevailing system in place at the time.

* Appeals of right, other than habeas corpus petitions (which the government could defeat simply by establishing the fact of a conviction by a court with competent jurisdiction without inquiry into the guts of the proceeding particularly in the early days), are not available in the federal criminal justice system until a century after the constitution was adopted. Commutations and pardons, by virtue of the absence of other alternatives, which do a negligible share of appellate review work today and rarely interrupt finality of sentences today, played a part that at least rivaled habeas corpus review and appellate review at the time. Indeed, it was arguably the only forum in which the kinds of issues raised in modern criminal appeals had any plausible shot at having an impact. Independence from Britain also enhanced the finality of criminal judgments in the U.S. by eliminating the right to appeal to a Privy Council in London weeks away across the Atlantic Ocean in certain circumstances that had existed in the Colonial era.

* The use of the death penalty for non-homicide offenses (pretty much all of the most serious felonies and some merely moderately serious felonies) was common in 18th century America and in 18th century Britain from which it derived its legal culture. Executions followed days or months, not years or decades, after the sentence was pronounced. Even into the 1960s, before the U.S. Supreme Court temporarily suspended the death penalty in the United States, judicial review of capital verdicts was not all that much longer or more onerous than judicial review of other criminal convictions for felonies. In the time of the Founders, summary execution by ship's captain tribunals for piracy on the high seas without any ordinary judicial process or judicial review was also routine (and at that time, the vast majority of the U.S. population lived on the Atlantic coast and travel by sea was the predominant form of interstate commerce). And, of course, the discipline of slaves, indentured servants, wives and children by a head of household was almost completely outside the judicial process. Within a household whose head was virtually sovereign in his own home.

* Corporal punishment short of death was also a not infrequently used sentencing option and again, was imposed promptly (and less often with any attempt at collateral review).

* Long sentences of incarceration were extremely rare (in part because society couldn't afford to run the prisons and remove so many able bodies men from the work force while feeding, sheltering and clothing them), so any process for reviewing convictions resulting in sentences to periods of incarceration would often be rendered moot unless it was very speedy.

* We normally don't think about the duration of the trial itself as a key parameter in the criminal justice system, but while we have many very short criminal trials today, just as we did back then, very long criminal trials were profoundly less common then than they are today. Also, preserving an appellate record at trial in order to set up an appeal was far more difficult.

Posted by: ohwilleke | May 9, 2014 8:39:36 PM

Not bad.
For a taste of a relevant Founding Father's legal
positions, try John Jay @ oll.libertyfund.org/titles/jay-the-correspondence-and-public-papers-of-john-jay-vol-4-1794-1826&
{The Correspondence and Public Papers of John Jay} www.nycourts.gov/history/legal-history-new-york/luminaries-supreme-court/jay-john.html

Posted by: Adamakis | May 9, 2014 11:30:44 PM

I was reading a few books and articles on the Nuremberg Trials last year. One thing struck me. The Russians were voicing the idea that each side round up the bad Nazis and simply shoot them without trial. One problem with that would have been that the World would not have seen the allegations and evidence which was presented and history would perhaps judged the Nazis and German people less harshly. In America, part of the process of trials and appeals has a similar positive aspect. The public gets to hear the allegations and evidence against alleged criminals and can learn from the mistakes. The issues of mistakes and intentional false charges against innocent people reveals an ugly side of America.

Posted by: Liberty1st | May 10, 2014 1:37:10 AM

The Founding Fathers are dead. We are not going to read the minds of people from 250 years ago.

We should be fans of accuracy. To promote it,

1) Allow the smartest and most experienced person in the tribunal to investigate the facts. The judge. Today, the hierarchy will destroy a judge who drives through the intersection of the accident. They impeached such a judge. Crush the vile cult criminals. Stop wasting the legal assets of he judge. Naturally, the judge should be liable in torts for a performance below judge standards of due care.

2) Appeals of a verdict should go to seasoned investigators for any missed factual innocence. If they are satisfied, both verdict and sentence should be final if the sentence is within guidelines.

3) If finality has value, make all appellate panels have an even number of judges. If the vote is tied, the decision of the lower court stands.

Posted by: Supremacy Claus | May 10, 2014 6:30:18 AM

The opening for review was there -- a historian of American law, e.g., cited various "technicalities" that overturned sentences in the 19th Century ("framers" of the 14A would be of this time period) -- and even if they were applied in a different way, the Constitution left the opening there for developments, including as the penal system looked much different than it did in 1790.

An earlier comment stacks the deck a bit there. For instance, damage awards being possible would not make things "moot" even if the person was whipped or something. Criminals also served in various ways outside of prison. Blacks, who did have some rights contra Taney, might have had to serve a period of servitude. Whites could be banished. Some probably served on work gangs or the like. And, "almost" is not "none." This is not meant to be a full reply either.

Posted by: Joe | May 10, 2014 12:07:12 PM

Lib: How do you like the outcome of those fancy trials? Immediate mass hangings of those not committing suicide. Same as what the Russians proposed.

The Russian were just mediocre Commies compared to the American lawyer. They did not see that lengthy trials would generate a massive lawyer bill, and government make work jobs for the lawyer profession. Then hide the real intent with lying lawyer propaganda about their false hypocritical piety.

Posted by: Supremacy Claus | May 11, 2014 10:25:26 AM

"2) Appeals of a verdict should go to seasoned investigators for any missed factual innocence. If they are satisfied, both verdict and sentence should be final if the sentence is within guidelines."

France has something a bit like this system. A certain percentage of cases are automatically appealed despite a lack of a request to appeal by either party as part of the auditing function to make sure that trial judges are doing their jobs.

Posted by: ohwilleke | May 13, 2014 2:46:54 PM

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