Mimesis Law
28 February 2021

Is It Better To Be Fair Or Final?

Apr. 26, 2016 (Mimesis Law) — Last week, Fault Lines contributor Andrew King wrote about the finality of judgments in the criminal justice system, and how that finality promotes just and desirable ends for the system. In other words, fixing a mistake is far less important than making sure the criminal justice system doesn’t have to confront its own ugly weaknesses.

The issue has been getting more attention after two United States Supreme Court opinions this term that consider questions of retroactivity. When does a change in the law benefit everybody, as opposed to just the people who happen to still be in the midst of challenging their case?

The first opinion on retroactivity this term came in Montgomery v. Alabama, the Supreme Court’s follow up to its opinion in Miller v. Alabama. Miller involved juveniles and life without parole sentences. The Supreme Court held that it was unconstitutional to sentence juveniles to mandatory life without parole sentences. Make sure you read “mandatory” before you flip out about the new-age soft criminal justice system. A judge can still warehouse a child for the rest of his or her life, he just has to have an actual hearing and think about it before he does.

After an opinion like Miller, there is the question of what happens with all of those other people who didn’t think to appeal on the same grounds, or appealed to a less friendly court and didn’t get anywhere. What do we do with them?

Retroactivity turns on whether a change in constitutional law involves substance or procedure. If it’s procedural, the only real benefit is to future defendants or defendants in the middle of their appeals. If it’s substantive, everybody benefits. Even the people who got screwed by the screwy law a long time ago.

Montgomery held that the new rule, that we can’t just toss kids’ lives away arbitrarily, would apply to all the kids whose lives have been tossed away arbitrarily. It recognized a mistake. A fundamental mistake. And it corrected it.

Last week, the opinion that sparked Andrew’s post made a similar declaration. In Welch v. United States, the Court continued its work on the Armed Career Criminal Act (ACCA). What a great name for a law. It is powerful. It evokes pictures of heavily armed cretins roaming the street preying on innocent Americans. Those predators, facing a maximum of ten years for federal gun possession, face fifteen to life based on their long history of violence and gunplay under the ACCA.

Except for one problem. That’s not actually who the law was sweeping up. Congress, surprisingly, didn’t think this through and passed another vague law no one could figure out. In particular, the ACCA’s description of the prior offenses that could trigger the law’s harsh penalty cast a wide net. Much litigation has centered on this part of the law, known as the “residual clause”, which applies the statute to prior crimes that:

… involve[d] conduct that presents a serious potential risk of physical injury to another.

In Johnson v. United States, decided last year, the Supreme Court got rid of that part of the ACCA. After years of considering whether things like not stopping for the police, failing to report to a prison, or driving under the influence properly triggered the ACCA’s residual clause, the Court had had enough. It found this part of the law vague. Void for vagueness is a constitutional theory that essentially says if no one can figure out what a law applies to, it’s not a good law. It would seem logic would dictate that doesn’t get used that often, because surely Congress knows how to write a clear law? Yeah, right.

Last week’s opinion in Welch determined exactly who this change in the law would help.

How does this work? A law sucks because no one knows what it applies to. Yet it has been used for many years to sentence people to harsh sentences. Once it has been fixed, does it make sense to leave all those people sitting in jail? Is it fair? Or is it more important that we don’t burden the court system with the extra work it would take to unwind years of unfair results?

Justice Thomas’s dissent in Welch complains that the actual issue of Johnson’s retroactivity was never raised below. Of course, the argument didn’t exist at the time. Thomas finds this an undue exercise of the lower court’s power. If it wasn’t raised directly to the court, it should be ignored. See no constitutional violation, hear no constitutional violation.

Thomas engages in a lot of rhetoric to reach the conclusion that Johnson should not be applied retroactively. But it’s the last few pages of his dissent that reveal his biggest concern, as well as Andrew King’s concern:

If this question is close now, that is only because the Court keeps moving the goalposts.

As the majority observes, the foundations of our approach to retroactivity in collateral review come from Justice Harlan’s separate opinions in Desist v. United States, 394 U. S. 244 (1969), and Mackey v. United States, 401 U. S. 667. Ante, at 7. There, Justice Harlan confronted a now-familiar problem: how to address the consequences of an ever-evolving Constitution. He responded with an approach to retroactivity that placed at the forefront the need for finality in the criminal process.

The need for finality is a false need. It satisfies society’s desire to be done with something, to put it behind us. But it ignores fairness. There are times when a mistake is made. Most of the time, the court steps in and explains how it is harmless error, also referred to as the “who cares?” standard of review.

There are also times when a mistake is made and nobody knows it. Someone is put in jail for far longer than they should have been, based on a faulty legal premise. Then the mistake gets fixed. Someone actually does care about this one. That “ever-evolving Constitution” kicks in and saves somebody. Maybe a bunch of people. It takes a lot of lawyers and a lot of judges doing a lot of work.

How is this a problem? Andrew says it costs resources:

This sort of fairness-based rules would likely result in diverting criminal justice and judicial resources away from trials and error correcting tasks, to collateral attacks on final judgments. If anything the rules should favor getting it right the first time, rather than permit unlimited collateral attacks on the chance a future change makes a past event retrospectively seem unfair.

Sure. Not completely wrecking somebody’s life because of laziness requires not being lazy. But the criminal justice system can’t afford to be lazy. Where Andrew, and Justice Thomas, get it wrong is the idea that a past event like an ACCA sentence looks unfair in retrospect. It was unfair the whole time, there was just no way to fix it. Now that it can be fixed, so what if it takes a little extra work?

We should get it right the first time. But for a variety of reasons, we don’t. Sometimes we get the opportunity to get it right later. Fairness allows us to look at our mistakes and fix them. Finality doesn’t.

6 Comments on this post.

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  • Richard G. Kopf
    26 April 2016 at 6:08 pm - Reply


    I hear you, my friend. But (aren’t there always “buts”), spend a day with me superintending the pro se habeas docket or when I evaluate all the 2255s that say I screwed the pooch in their cases.

    For every 100 cases, there may be .5 winners. We try desperately hard to find those needles in the haystack. We truly worry about the possibility of missing one. Nevertheless, the losers suck up our judicial resources. Absent some notion of finality (and we can debate, as the Justices have, what that notion should be), our legal system would literally grind to a halt without it.

    Law is and always has been imperfect. That’s real life, and we need to honestly acknowledge that truism. Otherwise, like the fool from Spain, we will have to joust with an infinite number of already defunct windmills. (Cue the music from Man of La Mancha.)

    All the best.

    Rich Kopf

    • Josh
      26 April 2016 at 7:36 pm - Reply

      That is a pretty common refrain, but I don’t buy it. I see case after case dismissed with very little thought. Of course, I am of the school that does not think a 30-page opinion equates to a bunch of thought, if it doesn’t contain any thought.

      Of course law is imperfect. Most things are imperfect. Its accepting that imperfection that drives me crazy. We should at least try. Otherwise whats the point of all this stress?

      In any event, I would love to come spend a day looking at pro se cases with you. Would I be a temporary staff attorney or could I be a temporary district court judge? Because I could get into the judging thing.

      • Scott Jacobs
        26 April 2016 at 9:04 pm - Reply

        For some reason this sounds like a horrible, horrible idea and I want to watch it happen very badly…

      • Richard G. Kopf
        27 April 2016 at 8:32 am - Reply


        Sure, come aboard, but you have to agree to laugh at my jokes. Also, I don’t like 30-page opinions either–too long. So if you can turn out a habeas opinion in a day and take no more than 12 pages to make it bulletproof on appeal, then I have a place for you.

        Sad to say your gig would be as an unpaid intern, but I provide free coffee. You couldn’t be a temporary district judge ’cause we don’t give out the secret private bathroom code to temps. It is a matter of national security.

        All the best.

        Rich Kopf

        • Scott Jacobs
          27 April 2016 at 12:57 pm - Reply

          I’m going to assume that “The State can go fuck itself” wouldn’t fly as an opinion…

  • Tommy Gilley
    10 May 2016 at 1:06 pm - Reply

    I wonder how many that people that .5 Judge Kopf mentioned actually refers to in real numbers? There is a real number of people who are getting a raw deal from their government because of poor legislative skill and judicial short staffing, for good or bad.