Daily Archives: May 23, 2014

Consensus Follies And Hidden Costs

Certainly, a judgment of conviction represents a consensus, with the imprimatur of the State, fixing responsibility and punishment for a crime.

Does the State have an interest in ‘finality’ when the consensus turns out to be wrong?*

Let’s stipulate that in the majority of cases it cannot be known with absolute certainty that the consensus was either right or wrong.  We do the best we can, and often times the best we can do leaves some room for doubt.  Either way.

Nevertheless there are some cases where the certainty is absolute, or at least as absolute as anything can be known in this life.  We are not talking about epistemology here; we are dealing with practical judgment.

The poetry of finality:

In light of “the profound societal costs that attend the exercise of habeas jurisdiction,” Smith v. Murray, 477 U.S. 527, 539 (1986), we have found it necessary to impose significant limits on the discretion of federal courts to grant habeas relief. See, e.g., McCleskey v. Zant, 499 U.S. 467, 487 (1991) (limiting “a district court’s discretion to entertain abusive petitions”); Wainwright v. Sykes, 433 U.S. 72, 90—91 (1977) (limiting courts’ discretion to entertain procedurally defaulted claims); Teague v. Lane, 489 U.S. 288, 308—310 (1989) (plurality opinion of O’Connor, J.) (limiting courts’ discretion to give retroactive application to “new rules” in habeas cases); Brecht v. Abrahamson, 507 U.S. 619, 637—638 (1993) (limiting courts’ discretion to grant habeas relief on the basis of “trial error”).

These limits reflect our enduring respect for “the State’s interest in the finality of convictions that have survived direct review within the state court system.” Id., at 635; accord, Wood v. Bartholomew, 516 U.S. 1, 8 (1995) (per curiam); Sawyer v. Whitley, 505 U.S. 333, 338 (1992); Keeney v. Tamayo-Reyes, 504 U.S. 1, 7 (1992); McCleskey, supra, at 491-492; Teague, supra, at 309; Murray v. Carrier, 477 U.S. 478, 487 (1986); Engle v. Isaac, 456 U.S. 107, 127 (1982). Finality is essential to both the retributive and the deterrent functions of criminal law. “Neither innocence nor just punishment can be vindicated until the final judgment is known.” McCleskey, supra, at 491. “Without finality, the criminal law is deprived of much of its deterrent effect.” Teague, supra, at 309.

Then a couple of kickers to drive the point home:

Finality also enhances the quality of judging. There is perhaps “nothing more subversive of a judge’s sense of responsibility, of the inner subjective conscientiousness which is so essential a part of the difficult and subtle art of judging well, than an indiscriminate acceptance of the notion that all the shots will always be called by someone else.” Bator, Finality in Criminal Law and Federal Habeas Corpus for State Prisoners, 76 Harv. L. Rev. 441, 451 (1963).

Finality serves as well to preserve the federal balance. Federal habeas review of state convictions frustrates “ ‘both the States’ sovereign power to punish offenders and their good-faith attempts to honor constitutional rights.’ ” Murray v. Carrier, supra, at 487 (quoting Engle, supra, at 128). “Our federal system recognizes the independent power of a State to articulate societal norms through criminal law; but the power of a State to pass laws means little if the State cannot enforce them.”


From Calderon v. Thompson, 523 US 538 (1998)

Well, that’s the argument.  I wonder more than a bit about the “…inner subjective conscientiousness which is so essential a part of the difficult and subtle art of judging well..” though.  Seems to me that judging should be an objective thing, not a function of subjective impressions that are apparently easily upended by  “…the notion that all the shots will always be called by someone else.”  Isn’t that the case anyway?  Is the judge’s job to make a decision reflecting his “subjective conscientiousness”, or to conform his subjective conscientiousness to objective reality known through things like oh, I don’t know, evidence?

Never mind.  That question really is about epistemology, and while it’s very relevant to this post and many others here at Lawyers on Strike, we’re not prepared to deal with it at length this morning.

On the other hand, the “societal costs” of wrongful convictions are not apparent.  The wrongfully convicted offender is robbed of the social position he otherwise would have had, but what is that position?  We can’t be sure.  Much of the time we have no idea.

What about his family and friends and co-workers and colleagues who all know that an injustice was done?  We don’t have any surveys to determine the impact on their – what shall we call it? – faith in the criminal justice system.

Multiply by the number of wrongful convictions.  See any social impact yet?

One problem, one very big problem with this line of reasoning is the encouragement it gives to building a consensus over getting it right.  This is an implicit favoritism to institutional litigants:  who is much better able to build a consensus, the individual or the institution?  The question answers itself.

So we see this play out, over and over.  One recent case in which a consensus was assiduously constructed is the Dawn Nguyen matter, which we wrote about here.  The consensus is that she bears criminal responsibility for the murder of two firefighters on Christmas eve 2012, even though she neither participated in that crime nor had any knowledge of it beforehand.  That’s not technically what she was found guilty of, but right now that’s not important.

What’s important is that the consensus was formed, and then hardened, and then implemented not so much through a rational process of evaluating it, but through an emotional catharsis that had no other outlet, since the real guilty party was dead and beyond earthly retribution.  It’s especially ironic in this context, for acting upon irrational emotional impulses is chiefly characteristic of criminal behavior, yet here the victim of it is designated the criminal.

Here’s the trick:  irrational emotional impulses don’t look like irrational emotional impulses when there is a powerful consensus behind them.  Except, we hope, in retrospect.  When reason tells us that we indulged a collective madness.

The mob in Dawn Nguyen’s case has not been a group of unruly yokels, but rather a politically powerful constituency that has historically, and depressingly, managed to assert a primitive, unreasoning dominance over the institutions whose entire function is to hold them in check.

I can’t begin to describe how dangerous this is, and how much worse it will be if this phenomenon, too, is anointed with poetry of finality.


*  Um, no.


Filed under wrongful convictions