New Scholarship Spotlight: Beyond Finality: How Making Criminal Judgments Less Final Can Further the ‘Interests of Finality’

Andrew Chongseh Kim has posted the above-titled article on SSRN.  Download here.  The abstract states:

Courts and scholars often assume that granting convicted defendants more liberal rights to challenge their convictions and sentences would necessarily harm society’s various interests in “finality,” the most prominent of which are resource conservation, efficient behavior by defense counsel, and deterrence. The extent to which convicted defendants should be allowed to challenge their judgments depends, according to the common analysis, on how much society is willing sacrifice those interests to validate defendants’ rights. This article argues that although expanding defendants’ rights on post-conviction review inherently makes criminal judgments less “final,” it does not necessarily harm the interests “finality” presumes to protect. Rather, when the financial costs of wrongfulincarceration, resource constraints on defense counsel, and the effects of legitimacy on compliance are considered, it becomes clear that granting more liberal review can often conserve state resources, will rarely affect the behavior of defense counsel at trial, and can help reduce crime.

First, the assumption that defendants’ post-conviction rights impose significant burdens on states ignores the costs of wrongful incarceration. Although recent studies on innocence have demonstrated that successful post-conviction review can produce large incarceration savings, they offer little insight into how significant those savings are compared to the administrative costs of providing the many appeals by defendants who failed to obtain relief on appeal. This article demonstrates, using the limited data available, that for direct appeals, the wrongful incarceration savings are generally quite substantial compared with the administrative costs of providing those appeals. Indeed, it is quite possible that some states realize net cost savings by providing direct appeals. The article then identifies specific restrictions on defendants’ rights, such as restrictions on relief from plain errors in sentencing that impose net costs on states. This article argues the existence of such restrictions that harm defendants at net financial cost to states is partly the result of an agency problem in criminal appellate decision making.

Second, although limiting defendants’ opportunities to seek relief from errors after conviction may increase incentives on defense counsel to prevent errors at trial, these increased incentives are unlikely to affect the actual behavior of counsel. With respect to strategic behavior or “sandbagging,” this article argues that because harmless error rules prohibit relief from errors that did not, in retrospect, affect the outcome of a trial, defense counsel will rarely have incentives ex ante to intentionally sandbag errors. In addition, because most inadvertent mistakes are caused by resource constraints on public defenders, rather than inattentiveness, increased restrictions on post-conviction rights are unlikely to reduce inadvertent mistakes. Moreover, to the extent that restricting review might actually compel defense counsel to take additional care at trial, because this care must be paid for by the state, it could actually be inefficient.

Finally, this article argues that the traditional finality deterrence argument, which depends heavily on the assumption that prisons effectively rehabilitate offenders, has been severely undermined by social science literature. Liberalizing post-conviction review, however, could increase incentives on people to obey the law by reducing wrongful convictions and the punishment given to defendants wrongfully convicted. Although the effects of reduced wrongful conviction are unlikely to affect the incentives of most people, for whom the risk of wrongful conviction is already negligible, they may be significant for at risk populations for whom the risk of profiling and wrongful suspicions are more salient. In addition, studies have demonstrated that the willingness of people to obey the law is influenced heavily on how “fair” or “legitimate” the legal system is perceived to be. Because many restrictions on post-conviction relief may be perceived as procedurally “unfair” by defendants, lifting these restrictions may actually encourage criminals and their associates to comply with the law.


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