Beyond Finality: How Making Criminal Judgments Less Final Can Further the 'Interests of Finality'

61 Pages Posted: 21 Mar 2013 Last revised: 9 Dec 2013

See all articles by Andrew Chongseh Kim

Andrew Chongseh Kim

South Texas College of Law Houston; Beck Redden LLP

Date Written: March 19, 2013


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 post-conviction 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’ post-conviction rights burden state resources ignores the costs of wrongful incarceration. Although appeals consume judicial resources, they help save money that would otherwise be wasted incarcerating wrongfully convicted defendants. This Article demonstrates that the incarceration savings produced by state direct appeals may actually exceed the costs of providing appeals and new trials. In other words, protecting the rights of defendants on appeal can often save states money. The Article then identifies specific restrictions, such as those on relief from plain errors in sentencing, that impose net financial costs on states.

Second, although increasing opportunities for post-conviction relief may reduce defense counsel’s incentives to prevent errors at trial, those reductions are unlikely to affect the actual behavior of counsel. Harmless error rules largely eliminate ex ante incentives for attorneys to intentionally sandbag or engage in other strategic behavior. Greater restrictions on post-conviction 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.

Keywords: sentencing, incarceration, costs, cognitive, judicial, bias, empirical, cost of incarceration, Fermi approximation, appeals, legitimacy, deterrence, Teague, retroactivity, new trial, new evidence, sentencing errors, sentencing correction, Missouri Sentencing Advisory Commission

JEL Classification: K14, K42, K40, K00, A12, D60, D61, D62, D63, D72, D73, D78, H30, H41, H72, H73

Suggested Citation

Kim, Andrew Chongseh, Beyond Finality: How Making Criminal Judgments Less Final Can Further the 'Interests of Finality' (March 19, 2013). 2013 UTAH L. REV. 561. Available at SSRN:

Andrew Chongseh Kim (Contact Author)

South Texas College of Law Houston ( email )

1303 San Jacinto Street
Houston, TX 77002
United States

Beck Redden LLP ( email )

1221 McKinney Street
Suite 4500
Houston, TX 77010

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