It's Not Just a Procedure, It's Due Process

Not long after I moved to Toledo from Texas, I was talking with a judge in his chambers.  He'd been a judge for a long time, I was new to town.  Neither of us knew much of anything about the other.  We'd just met and were feeling each other out.  

Are you, he asked, more in the due process camp or the finality camp?

I'm a criminal defense lawyer.  We're congenitally opposed to finality.  Judges, though, are different. They have different views, approach things each in her own way.

This judge knew all of that perfectly well.  He wasn't really asking where I fell on the spectrum.  He was using the question to let me know that he understood it wasn't an either/or but a continuum.  He was also, without being quotable on the subject, telling me something about another judge and her perspective on things.

I hadn't thought about his question and what he was getting at for years. Then I read what James C. Hill, Judge of the 11th Circuit Court of Appeals wrote in Rozier v. United States.  

Due process is the defining virtue of our system of criminal justice. But we should ask ourselves why. Is it because it achieves finality? Or is it because we believe that, more often than not, we will reach a correct result where certain process is due the criminal defendant. The goal is a correct result — not simply the provision of process. To be sure, we do not guarantee a correct result. But where all know the result is error, to adhere to the process as though it were the end goal is unfair in the purest sense of the word.

Judge Hill was, of course, dissenting.

I came upon Judge Hill's dissent while reading Judge Ilana Diamond Rovner's dissent in Hawkins v. United States. (It's actually one of Judge Rovner's three dissents from decisions in Hawkins, each making essentially the same point.)  Hawkins, it seems, had been sentenced as a career criminal.  As a career criminal, he was sentenced to something like 12 1/2 years in the his government's loving embrace.  The problem is that Hawkins wasn't a career criminal, though they figured that out later rather than sooner when the courts revisited just what sorts of people fall into that category.  Turns out that rather than spending well over a decade in the pokey, Hawkins should have gotten no more than 15 months.  He complained about it, but, well, you know, finality.  So Judge Rovner dissented.

As a philosophical matter, I believe that fairness is the lifeblood of our system of justice, and more specifically, justice requires the ability to rectify substantial uncontroverted judicial errors that cause significant injury. This is why in our anthropomorphization of Justice, she is wearing a blindfold, and not running shoes. If allowing fairness to prevail in limited situations involving grave miscarriages of justice subverts finality, then I suppose I agree with my dissenting brother in the Eleventh Circuit who, in a similar case, decried the "elevation of form over substance; of finality over fairness." Rozier v. United States, 701 F.3d 681, 690 (11th Cir.2012) (Hill, J. dissenting).

This is how we do things.  One citation leads to another.  One intriguing line leads you astray, wandering in the woods, path upon path, follow this trail and when it branches off go that way.

Which explains, I suppose, why it is that I followed Judge Rovner's citation to Rozier in order to see further what Judge Hill had to say.  And, need I add, what took me to Judge Rovner was yet another opinion.  This time it was a concurrance, written by Andre M. Davis, Senior Judge on the Fourth Circuit.  The case is Whiteside v. United States.  

Deangelo Whiteside was sentenced as a career offender, but later case law revealed that he should not have been. He filed an out-of-time petition for writ of habeas corpus to challenge his sentence. The majority opinion for the panel finds that the case presents a uniquely compelling miscarriage of justice that qualifies for equitable tolling which resolves the timeliness issue, grants a Certificate of Appealability which allows him to make his argument, and remands the case for him to be resentenced.

The dissent would have none of that.  Maybe in light of later decisions he should have been sentenced to somewhere around 11 years rather than something close to 19.  What's 8 years in prison among friends?  Oh, maybe it was unfair.  So is life.  Get over it.  And if we treat Whiteside fairly . . . .  Hell, Nino Scalia himself has warned about the dangers of judges who want to be fair and who have a conscience.  Besides, all is right.

The Great Writ stands for the fundamental proposition that government too is subject to the given law. Here the government observed the law; it is, sadly, a court that accords no meaning to that fact. How is it that requiring someone to serve a sentence lawfully imposed and constitutionally rendered becomes a “plain injustice” and a “fundamental unfairness”? Maj. Op. at 29. This path vindicates no fundamental liberty. It only transforms collateral review into a double of direct review, a redundant mechanism for routine error correction, deployed to unsettle sentences that were imposed years earlier under governing law, in accordance with unexceptionable procedure, and by a sovereign acting in accordance with its sovereign duty to protect citizens from those who repeatedly violate its criminal laws.

Much as I might grumble, that's not self-evidently wrong.  Whiteside was properly sentenced when he was sentenced.  The law doesn't allow him to keep coming back.  Hell, that's essentially what the majorities in Rozier and Hawkins said.  Which makes Whiteside all the more important.

The majority opinion, explains and develops the argument for why Whiteside should get relief and how it is that the law allows it.  It's a great analysis and filled with the sort of legal analysis that can bore even lawyers to tears.  Judge Davis is more pointed, concerned with the principle of the thing.

I am pleased to join Judge Gregory’s extraordinarily compelling opinion, which fully responds to the dissent’s overwrought and formalistic protestations that our judgment here presages an end to law as we know it. (Evidently, it is not enough simply for the dissent to say that there is no miscarriage of justice shown on this record.)

The dissenting opinion is hopelessly pleased with itself. This is not surprising, as it prostrates itself at the altar of finality, draped in the sacred shroud of judicial restraint. There is much that could be said about the dissenting opinion’s paean to finality, but one can hardly say it more poignantly or more persuasively than has Judge Rovner. See Hawkins v. United States, 724 F.3d 915, 919-25 (7th Cir. 2013) (Rovner, J, dissenting from the denial of rehearing), en banc reh’g denied, 725 F.3d 680 (7th Cir. 2013) (Rovner, J., joined by Wood, Williams, and Hamilton, JJ., dissenting from denial of rehearing en banc).

In any event, what’s remarkable is that, as viewed through the lens of our good friend’s dissenting opinion, it is perfectly fine for the United States Department of Justice, which is to say the Executive Branch, to bypass supposed reverence for finality on a case-by-case basis, through waivers of limitations and other devices, see ante, Maj. op., n.6, but the Third Branch is duty-bound never to acknowledge instances in which law’s interest in finality must give way to competing values rooted in our shared abhorrence of manifest injustice. To devolve to the Executive Branch sole authority to identify a cognizable miscarriage of justice amounts to judicial abdication, not judicial restraint. Such an approach enjoys no legitimate place in our scheme of institutional checks and balances. The Third Branch’s transcendent role, in our enviable but imperfect system of criminal justice, is to afford protection from the loss of individual liberty resulting from profoundly erroneous decision-making, and not least of all, erroneous decision-making by the Third Branch itself, as in this very case.

The dissenting opinion favors what’s “finished” over what’s “right” and thereby blinks at a profound miscarriage of justice. It is wrong to do so.

Because if the dissent is right, if the majorities in Rozier and Hawkins are right, then fairness is not so much wrong headed as wholly irrelevant and we've abandoned the idea of due process for the fetish of procedures.

It's tempting.  There's a simplicity to it.  But it's a fundamental error.  Due process is not a procedure or set of procedures.  Procedures are ends in themselves.  This is how we do it.  Process, Due Process is rather, a means to a larger goal.

When the innocent guy gets out of prison after a couple of decades, we pat ourselves on the back and speak of a job well done. See, the forces of procedure observe.  We care about getting it right.  How noble of us.  And our procedures ensured that outcome in orderly fashion.  

Those same procedures, of course, sent the innocent guy down.  While he screamed about due process. And he was afforded a procedure.

Sigh.                                                                                                                                                                             

H/t Doug Berman