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

2 responses to “Consensus Follies And Hidden Costs

  1. Barrett

    I am not certain if she purchased the guns specifically for Spengler but nevertheless, he obtained them and used them in several senseless acts of violence. I am also not certain if she knew of his background assuming, of course, she purchased the guns specifically for him. I do know that humans are frequent advocates of holding people accountable when bad things happen to good people. This is true whether or not guilt is is confirmed or presumed (I think we’d both agree there is such a thing as the presumption of innocence or people would not be arrested and put in jail waiting for their day in court to “prove” their innocence).

    In this case, and depending on how you look at it, she may not be different from the person who lawfully purchases guns just to have them stolen and used in a robbery or a homicide such as Columbine, Sandy Hook, or the South Side of Chicago. Seems like several things led to the deaths of the victims one of which is why was Spengler released from prison? Do we hold the gun dealer responsible? We we hold the gun manufacturer responsible? The late great Phil Corboy sued not only United Airlines but also Boeing as well as the companies that mined the materials involved in the casastrophic failure. Obviously he thought they all played a key.

    At some point, I would not be surprised to see a crafty lawyer hold a chain of people accountable when there is gun violence. In fact, I am not certain if I am even opposed to it if the result is a reduction in gun violence, especially when those victims are children. I might even be a fan of requiring gun owners to carry liability insurance for their guns, but that would involve a reactive rather than a proactive approach.

    In this case, I read that Dawn’s case was not tied to the shootings. Seems like nonsense because without her, there would have not been those homicides. Or would have Spengler simply obtained guns elsewhere? Nevertheless, the court held her responsible and some rest peacefully. Our judicial system? Maybe not.


    • Barrett, hi.

      You raise what I think is a very good point: civil liability can be just as effective or more effective in addressing the kind of harm done here. Not to mention being less random and less unjust. My problem with the Dawn Nguyen matter – well, one problem anyway – is that there are so many other people in the causal chain that have just as much responsibility as her, and in some cases more so, even if everything the prosecution alleged (that is, that she was buying the guns for Spengler) is true, and there’s little reason to believe that the prosecution’s allegations are true.

      The real efficacy of civil liability is grossly under-appreciated, even by lawyers and judges. It doesn’t have the drama of imposing criminal liability, and it requires a lot more patience and insight to understand it. But the fact is that money is a very important incentive for behavior going forward, and once insurance companies do their calculations and charge premiums accordingly you’ll see adjustments in the relevant businesses and industries that address this kind of problem far more effectively than putting little Dawn Nguyen in prison.

      Which is a practical argument, of course. There is also weight to the point, in my mind, that singling Dawn Nguyen out has been grossly unfair and arbitrary. And I also think the behavior of the law enforcement/firefighter/EMT alliance in the case, and the courts’ obsequious response to it, is very disturbing. We see that kind of thing more and more, where law enforcement as a group brazenly asserts its dominance over the criminal justice system, and most judges are all too happy to oblige.


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