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:

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.

The competing interests are finality versus fairness. It’s not that people argue the virtue of keeping people imprisoned for violating an unconstitutional law. It’s that all good things must come to an end or nothing will ever be final.

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.

No doubt the guy who filed 3,613 lawsuits was given very serious consideration in each and every one before they were summarily dismissed. But even so, he’s the tail wagging the dog. The challenge between finality and fairness isn’t controlled by the outlier, but by the doctrinal issue raised: what is the legitimacy of a legal system that imprisons people for crimes that, poof, suddenly aren’t crimes?  And why, as Judge Richard Kopf notes in a comment to Andrew’s post, doesn’t the Supreme Court include in its decisions whether, in the exercise of their value judgment, its ruling should be applied retroactively?

The question of retroactivity is vexing, as it takes a second case, the “right vehicle,” before the Court answers the obvious question raised in its earlier decision. The Supremes justify this as judicial modesty, not deciding questions not before it. It is sheer, unadulterated nonsense, since the question of retroactivity is inherent in its holding a law unconstitutional. By definition, they raise the question, but are too “modest” to answer it. And so, people sit in prison for years awaiting their unduly deliberate answer.

But if this raises a problem up to now, an issue of whether a legitimate legal system can continue to imprison a person for violating a law that is unconstitutional, it’s likely to become far more of a problem due to the shift in what is being criminalized. In Rhode Island, AG Kilmartin wants to criminalize mean people on the internet.  Mary Anne Franks has been pushing to criminalize her flavor of naked speech wherever anyone will cry sad tears. Sex crimes on campus are based on secret feelings, and proven in secret proceedings.  And what about those teens whose naked selfies fall under the kiddie porn prohibition?

There is a lot going on that is wildly unconstitutional.  Doctrine is being pushed so far off the edge as to give rise to a strong likelihood that challenges to most of the new-fangled feelz laws will end up with crimes dropping like flies.  And yet, there will be people in cells in the interim due to these laws and the peculiar mindset that the Constitution is just a nasty old piece of paper derived from the twisted minds of a bunch of slave owning rapists, so it can be ignored.

What becomes of these people who have committed the crime of free speech?  How strong is the need for finality that the exercise of a constitutional right serves as sufficient reason to keep the cell door locked, even after the obviously unconstitutional law is held obviously unconstitutional?

When Congress decided to screw with habeas corpus by enacting the AEDPA, it was in a law about terrorists. Terrorists! Nobody wants to cut terrorists a break, and so habeas for everybody suffered.  And in the case raised by Andrew, Welch v. United States, the law at stake was the Armed Career Criminal Act, and let’s face it, who loves armed career criminals?

But when the law at issue is the Hurt Feelings Act, the Mean Internet Law or the Anti-Chalk On Campus Act of 2016, will the same value judgments apply?

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.

The arguments in favor of finality don’t change based upon the nature of the underlying crime, even though the empathy factor is a constantly moving goalpost.  If the justification for a government exercising its authority, its power, to imprison people is the legitimacy of law and process under the Constitution, then finality makes for a lousy doctrine.

And while nobody may have given a damn when the guys imprisoned were putative terrorists or armed career criminals, it’s likely that the equities will shift when it’s people whose only wrong is that they exercised a constitutional right and hurt someone’s feelings in the process.  Given what’s happening in America, there’s a strong likelihood that this will end up the target of our next run of constitutional challenges.