BEYOND FINALITY:HOW MAKING CRIMINAL JUDGMENTS LESS FINAL CAN FURTHER THE 'INTERESTS OF FINALITY'

摘要

Courts and scholars commonly assume that granting convicted defendants more liberal rights to challenge their judgments would harm society's interests in "finality". According to conventional wisdom, finality in criminal judgments is necessary to conserve resources, encourage efficient behavior by defense counsel, and deter crime. Thus, under the common analysis, the extent to which convicted defendants should be allowed to challenge their judgments depends on how much society is willing to sacrifice to validate defendants' rights. This Article argues that expanding defendants' rights on posttrial review does not always harm these interests. Rather, more liberal review can often conserve state resources, will rarely affect the behavior of defense counsel, and can help reduce crime. First, the assumption that defendants' posttrial rights burden state resources ignores the costs of wrongful incarceration. Although posttrial review consumes judicial resources, it helps save money that would otherwise be spent incarcerating wrongfully convicted defendants and those given improperly lengthy sentences. To demonstrate the significance of wrongful incarceration, this Article estimates and compares the incarceration savings produced by state direct appeals with the costs of providing appeals. It concludes that direct appeals produce incarceration savings that are roughly as large as and may even exceed the administrative costs of appeals and new trials. In other words, protecting the rights of defendants on appeal may actually save states money. The Article then identifies specific restrictions on review, such as those on relief from plain errors in sentencing that impose net financial costs on states. Second, although increasing opportunities for posttrial relief theoretically reduces defense counsel's incentives to prevent errors at trial, those reductions are unlikely to affect the actual behavior of counsel. This Article argues that harmless error rules largely eliminate ex ante incentives for attorneys to sandbag or engage in other strategic behavior. Moreover, greater restrictions on posttrial rights are unlikely to reduce inadvertent errors because resource constraints on public defenders, rather than inattentiveness, are the principal cause of such errors. Finally, this Article reveals that the traditional deterrence arguments are based on empirical assumptions that are demonstrably false. Moreover, recent social psychological research shows that the willingness of people to obey the law is influenced heavily by their perceptions of procedural fairness and system legitimacy. Restrictions that appear subjectively "unfair" to defendants may, therefore, increase recidivism by undermining legitimacy. Conversely, reforming such restrictions may encourage defendants to comply with the law.