Mimesis Law
1 October 2020

Justice Thomas Refuses To Ride In Doc Brown’s DeLorean

Apr. 22, 2016 (Mimesis Law) — Imagine that you were found guilty and sent to prison for a crime. It really does not matter what crime you committed. Maybe in the not too distance future, violating the terms of the iTunes agreement will lead to criminal prosecution. Or perhaps uploading a Metallica song to YouTube sent you up the river.

Regardless, you’re there for whatever great evil you committed. You spend your days wearing pink and suffering the desert heat with only your tent for protection. As the years go by, you lose your appeals, even a petition to the Supreme Court. And then you lose your post-conviction case. The days of recklessly enjoying YouTube and iTunes become a distant, faded memory.

And then like a thunderbolt from the heavens, the Supreme Court of the United States determines that the law you were convicted under was unconstitutional. You send a kite up to ask the jail staff when and how soon you’re going to be released. Eventually you get some vague answer back saying, in essence, you’re not going anywhere. You write letters to whomever you can think of, hoping someone will help you. Eventually, some benevolent public defender tells you that paperwork has to be filed and, even then, there’s a chance your dusty iPad will never have you hold it again. Perhaps your iPad has even moved on.

This is not some diabolic scheme to keep people in jail on unconstitutional charges. Rather it is consequence of the rules promoting finality in judgments. Eventually, everyone involved in the matter needs to have confidence that the judgment is final and can now move on with their lives. Granted, though, that inmates do not really get to move on with their lives until their sentence is up.

But eventually memories fade, people die, victims want to move on and heal, and evidence is lost or spoiled. It can become practically impossible to retry some cases after enough time elapses. So, finality of judgment often promotes just and desirable ends, sometimes even when some aspect of a criminal case changes constitutional directions after conviction.

Moreover, clogging the court system with multiple filings attacking the judgment will come at the expense of other cases. And inmates in particular have incentive to file as many things as possible. Not only because they have a lot of free time, but there is potentially great upside and really no downside. That is unless of course you’re an inmate who cannot stand to have any of your commissary account diverted to your pro se filing fees.

So, you get inmates like this guy, who filed 3,613 lawsuits in a single year. It’s a fair bet he’s also filed delayed appeals, habeas petitions, and motions for new trial too. Contrary to what you may hear, law enforcement and judicial resources are not infinite. So permitting guerilla lawfare against final judgments comes at the cost of all the other cases before the court. So, again, finality of judgment promotes justice system wide.

In the comments to this post, my co-blogger Jeff Gamso relates how he was asked by a judge whether Jeff was in either the due process or finality camp. The way the judge framed the question is a false dichotomy. In reality, most Americans probably would not feel comfortable with judgments reached without sufficient due process. And without some degree finality, the use of “due” to modify process is rendered superfluous because at least one of the litigants, usually the plaintiff, wants the matter resolved. “Process” would be a version of the “The Trial” that only the Red Queen could love, as it would go on without end, neither side ever going anywhere.

But rules promoting finality of judgments are not without their limits. For quite some time, the Supreme Court has recognized that “a change in the law will be given effect while the case is on direct review.” So, if criminal enforcement of the iTunes contract was ruled unconstitutional between your conviction and before the direct appeal process is exhausted, then you can raise the issue and presumably win. That seems fair enough. You’re already arguing that the trial court made an error; so, allowing defendants to benefit from changes in the law is generally equitable. The much sticker issue is what to do when the law changes and your direct appeal process is over.

A few days ago, the Supreme Court returned to that issue in the case Welch v. United States. In Welch’s case, he was convicted under the Armed Career Criminal Act; his direct appeal was rejected; and his habeas petition was rejected. Then shortly after he received the last denial, the Supreme Court decided that the statute he was convicted under was unconstitutionally vague. In reviewing the case, the Court invoked its general framework on whether changes of the law would apply to matters on collateral review (internal citations omitted):

Under Teague, as a general matter, “new constitutional rules of criminal procedure will not be applicable to those cases which have become final before the new rules are announced.” 489 U. S., at 310. Teague and its progeny recognize two categories of decisions that fall outside this general bar on retroactivity for procedural rules. First, “[n]ew substantive rules generally apply retroactively.” Second, new “‘wa­tershed rules of criminal procedure,’” which are procedural rules “implicating the fundamental fairness and accu- racy of the criminal proceeding,” will also have retroactive effect.

Bottom line, the majority concluded that change was a new rule, and the change was substantive, not procedural. As a result, Welch could have his petition heard and presumably get relief by the trial court. Although it looked like a straight forward application of precedent, Justice Thomas disagreed:

The majority instead determines whether a rule is substantive by looking to the “function of the rule,” ante, at 10, and asking “whether the new rule itself has a proce­dural function or a substantive function,” ante, at 11. This apparently means that courts should divine the effect of a new rule and decide whether that effect alters the sub­stantive elements of a crime or sentence.

All that matters, the majority says, is that the vagueness rule announced in Johnson had the effect of invalidating the residual clause and, as a result of its invalidation, the residual clause “can no longer mandate or authorize any sentence.” Ante, at 9 (“striking down the residual clause” is what “changed the substantive reach of [ACCA]”).

That approach is untenable. It brushes aside the rule of decision, which is where all of our prior precedents begin and end for purposes of applying Teague. When deciding whether rules are substantive, our cases have homed in on the rule that would apply not just to the specific statute at hand, but in similar, future circumstances.

What Justice Thomas is complaining about, in so many words, is that the rule originally favored finality but is now being undermined in favor of fairness. His argument is not that finality must be the only concern. Rather, Justice Thomas is concerned about unnecessarily eroding rules promoting finality.

Doug Berman explains that this may represent a “make up call” for letting this ACCA issue fester so long. Moreover, he applauds this movement to a more fairness-based rule than a finality-based rule. But the primary problem with this policy change is that it trades a bright line and relatively objective rule for one that is fuzzy and highly dependent on to whom we expect the rule to be fair.

Berman’s argument distinguishes between fairness in sentencing issues, as opposed to conviction or trial related issues. But as Justice Thomas points out in his dissent, once you start moving the goal posts, it becomes increasingly more difficult to avoid the temptation to tinker with them. Plus, as noted above, the line may not always going to be clear. For example, should aggravating factors that lead to mandatory sentences be treated as conviction-related or sentence-related?

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.

6 Comments on this post.

Leave a Reply



Comments for Fault Lines posts are closed here. You can leave comments for this post at the new site, faultlines.us

  • Jeff Gamso
    22 April 2016 at 10:22 am - Reply

    So there are good policy reasons to endorse finality as a virtue. Where there’s just decency, fairness, and the 5th, 6th, and 14th Amendments to support due process. I know, I know, here I go again. But I’ll stick with the process camp, Andrew.

    Look, when the Supremes decide (and sure some folks will disagree and the Supremes might even change their mind someday) that X violates the Constitution, it means that someone who’s doing time because of X is doing that time when she shouldn’t be. The question is whether we should do something about it.

    I don’t know of any decent, humane, moral way to say, “tough shit.” If you were prosecuted/sentenced today, you’d go home. But back in the day we didn’t know that the Constitution required you to go free. Not even when (as is often the case), you made the argument repeatedly but before the Supremes decided to decide it. So fuck you.

    Yeah, finality and closure. And those intellectually disabled (we called them mentally retarded at the time) folks who were executed before the berobed ones noticed that the Constitution prohibited it. Well, they got their closure, too. But it was, after all, just sentencing. For people we figured were guilty. And hey, slippery slopes and all.

  • Richard G. Kopf
    22 April 2016 at 12:40 pm - Reply


    As I have suggested before, it is possible in most cases considered by the Supreme Court to decide the issue of retroactivity at the same time the Court invalidates a statute, rule or practice as unconstitutional. No one should have to wait around while the Justices find their vaunted “correct vehicle”–a second case–to decide retroactivity.

    Since the issue of “retroactivity” is a judge-made rule, the least the Justices can do is to be practical for once. In short, make the value judgment–fairness v. finality–at the time the Justices decide the substantive question–that shouldn’t tax them too much.

    All the best.

    Rich Kopf

  • When Is Enough Enough? Finality v. Legitimacy | Simple Justice
    25 April 2016 at 8:54 am - Reply

    […] It was bad enough when Congress passed the AEDPA, the Anti-Terrorism and Effective Death Penalty Act of 1996, that included the functional death of the Great Writ, but even when the Supreme Court holds a law unconstitutional, the poor schmucks in prison cells for having broken it still don’t get to pack their bags to go home. Crazy, right?  Not so, argues my favorite prosecutor, Andrew King, at Fault Lines: […]

  • Kansas Supreme Court Rules, Then Reverses Itself, Over A Weekend
    26 April 2016 at 9:25 am - Reply

    […] face of harsher requirements for sex offenders. In a system that talks endlessly about the joys of “finality,” none of these citizens will ever know if their punishment has ended. And all it took to ensure a […]

  • Statutes Of Limitations Ensure Due Process
    11 November 2016 at 9:21 am - Reply

    […] to the level of wanting to pursue redress. Eventually, the interest in maintaining the status quo (a/k/a finality) takes priority and the right to even pursue a remedy is […]

  • Beckles Asks SCOTUS To Strike Down Sentencing Guideline For Vagueness
    29 November 2016 at 9:10 am - Reply

    […] the Court was even willing to bend the rules for review for folks wrongly tagged under this statute—perhaps something of a make-up call. But these cases […]