Thursday, May 15, 2014
Prof. Berman calls for re-examination of presumption of finality in sentencing, with implications for federal habeas corpus petitions
In his exciting new essay Re-Balancing Fitness, Fairness, and Finality for Sentences, Professor Douglas Berman considers when a criminal defendant’s final sentence—after exhausting state court appeals—may be reviewed or reconsidered by a federal court on account of “subsequent legal developments” pursuant to a writ of habeas corpus. For a writ of habeas corpus to issue, a criminal defendant must first demonstrate by clear and convincing evidence that the state court’s decision violated the defendant’s constitutionally protected rights. If there has been a constitutional violation, the defendant then must prove by “clear and convincing evidence” that the state court’s decision was contrary to constitutional law, or that its decision was unreasonable under the particular facts of the case.
The consideration of “sentence finality,” argues Professor Berman, ought to account for relevant distinctions between habeas corpus petitions for review or reconsideration of convictions and those for sentencing, a difference currently missing from finality discussions by courts and commentators.* He concludes:
I strongly believe that lawmakers and judges should be inclined to reverse the standard finality presumption [when] a defendant is challenging only his extended on-going prison sentence based on consequential new developments… Put another way, I contend that finality concerns ought to presumptively recede when a defendant challenges an extended prison term, especially if and when the relief sought is not reversal of past punishments already endured, but merely a new assessment of significant scheduled future punishments still in the offing.
To begin with, the historical record does not evidence a commitment to finality in sentencing at the time of the nation’s founding. To the contrary, early sentencing practices coupled with various provisions of the federal constitution suggest a desire that judges and correctional officials retain discretion in the imposition of sentences. In fact, the desire for finality is a relatively new phenomenon. Professor Berman observes that discretion was the norm until the 1960s when support for retributive sentencing policies began gaining popularity.
This historical reality should inform consideration of this period’s debate over the finality of criminal judgments in two critical ways: (1) because it was widely understood (and still well-accepted) that all sentences were indeterminate and subject to review and reconsideration by corrections officials, advocates stressing the importance of treating criminal judgments as final were necessarily focused only on finality of criminal convictions; and, (2) any problems or harms resulting from giving too much weight to the interest of finality for criminal convictions were necessarily mitigated by parole mechanisms which allowed reconsideration of any and all criminal sentences that might later be considered unfit or unfair based on subsequent legal or social developments.
Moreover, the conceptual justifications for finality vary depending on the nature of the defendant’s request—whether it pertains to the conviction or the sentence. As reflected by contemporary standards, whereas criminal trials demand determinations about “historical factual issues to be reflected by” the rote decision as to the defendant’s guilt or non-guilt, sentencing requires an examination of a much broader set of considerations to ensure that the outcome of this more nuanced decision reflects “just and effective punishment” for the wrongdoing. As Professor Berman explains:
Put most simply, sentence finality is a concern different in kind from conviction finality, and thus the finality balance struck for convictions, whatever its merits or flaws, should not, in modern times, be unthinkingly applied when a defendant only seeks review or reconsideration of an on-going sentence.
These historical, conceptual, and practical differences ought to affect the way courts analyze challenges to the standard finality presumption. That is, an inmate’s habeas corpus petition ought to receive less exacting scrutiny than a plea to review a conviction.
I’m no expert, but I find Professor Berman’s thesis persuasive. I’ve long been troubled by laws limiting the discretionary authority of those responsible for sentencing decisions, such as mandatory minimum sentencing, which shifts sentencing decisions from decision-makers to prosecutors. I also worry about faith in the nonexistence of—or perhaps ambivalence to—future circumstances that might provoke just challenges to today’s sentencing decisions—e.g. the disparity in sentencing for possession of crack and powder cocaine. Professor Berman’s bifurcation of finality in convictions and sentencing seems to go a long way towards the creation of doctrine that is more responsive to the demands of justice than the current standard.
Sunday, October 27, 2013
Judge dismisses false arrest lawsuit in which the wrong man was arrested and held in prison for five days before police realized their mistake.
Macy's now joined with Barney's in scandal over allegations that the businesses profiled black shoppers making expensive purchases and detained them, while Barney's vows to review its policies.
Wisconsin becomes latest state to consider enacting legislation criminalizing revenge porn.
Protesters marched in Washington on Saturday decrying the NSA's online surveillance program.
FBI investigates the recent killing by police of 13-year-old carrying a plastic gun.
Friday, October 25, 2013
Wisconsin woman held in drug treatment center under fetal protection law challenges the law's constitutionality.
NRO's Reihan Salam says political reformers should focus on increasing party power.
Time raises questions about online reporting of sexual abuse.
Ohio Secretary of State says there's a need to cut down early voting hours.
Ohioans could be turning to Michigan abortion clinics as local ones close.
Columnist rejects argument for arming teachers and says its time to start holding partents of schoolhouse killers responsible as well.
And, a North Carolina Republican official resigns following racially-charged comments on Wednesday's The Daily Show.