Issue 6: When state supreme courts choose finality over justice

October 31, 2022 By Kyle C. Barry

Last term, when in one case the U.S. Supreme Court gutted both the right to counsel and to habeas review, Justice Sotomayor lamented the conservative majority’s “single-minded focus on finality.” In that case, the Court denied review to a death row prisoner whose trial lawyer failed to “uncover readily available medical evidence that could have shown” his innocence. And why? Because, Justice Thomas wrote, ensuring the “finality” of state court convictions is “necessary to preserve the integrity of legal proceedings.”

The idea that “finality” is what preserves the integrity of criminal convictions—and not, say, justice or fairness or accuracy—is a deeply unsettling axiom of federal law. The federal reports are littered with concerns about how expensive and laborious and time-consuming it would be if courts actually enforced the Constitution and protected innocent people from wrongful convictions. Preserving “finality” is in part why the Supreme Court has refused to say that it is unconstitutional to execute demonstrably innocent people. We couldn’t have that, then-Chief Justice Rehnquist wrote, “because of the very disruptive effect that entertaining claims of actual innocence would have on the need for finality in capital cases.” 

The meme tweet writes itself: “Supreme Court rules 6-3 that killing innocent people to save time & money is deeply rooted in the Constitution.” 

In theory at least, finality should be a lower priority in state appellate courts, where there is no pretense of respecting other niceties like “comity” or “federalism.” But it doesn’t always work that way. Take this recent decision from the Louisiana Supreme Court:

To be clear, there is no dispute or ambiguity about the racist origins of Louisiana’s non-unanimous jury rule, which is in part why the Supreme Court eventually struck it down. The express purpose of Louisiana’s 1898 constitutional convention, according to one delegate, was to “establish the supremacy of the white race.” And it was there that Louisiana adopted the rule allowing 9-3 convictions (later changed to 10-2) in order “to ensure that African-American juror service would be meaningless.”

In 2020, the U.S. Supreme Court held that the Sixth Amendment requires unanimous jury verdicts, and the issue before the Louisiana Supreme Court was whether this rule applies to convictions that are already “final.” In other words, should people with unconstitutional convictions get a new trial? Or should “finality”—even knowingly unconstitutional, illegal finality—win out? 

The court acknowledged that federal law provides only “a floor for when a new rule of criminal law must be applied retroactively, with a state nonetheless free to adopt its own broader test for requiring the retroactive application of a new federal or state constitutional rule,” but that wasn’t enough. Instead, it was “finality and reliance interests, combined with the burden placed upon the administration of justice,” that the court found most important. 

Indeed, in the court’s view, that the number of now people incarcerated based on non-unanimous verdicts “is surely in the hundreds, if not more,” was reason to reject retroactivity; requiring that many retrials is an intolerable administrative cost, while withholding constitutional rights to that many people is a tolerable, if cruel, injustice.


In an even more extreme case of finality deference, journalist Radley Balko and Amherst college political science professor Austin Sarat this week each highlighted the case of Anthony Apanovitch, a man that the state of Ohio knows is innocent but plans to execute anyway. 

Sarat wrote:

Apanovitch is on death row even though DNA evidence conclusively proves that he did not commit the crime for which he has been sentenced to die. He is there because of a shocking combination of prosecutorial misconduct and the desire of some supporters of capital punishment to achieve finality in death cases even if it comes at the expense of justice.

And amid the many systemic failures in Apanovitch’s case is a shocking 2018 Ohio state supreme court opinion:

lower court had relied on DNA evidence to rule that Apanovitch was “actually innocent” of certain charges and entitled to a new trial on others, but the state supreme court, engaging in what may be described as extreme statutory formalism, unanimously reversed. According to the court, the relevant statute allowing review applies only when the convicted person asks for the DNA testing: 

The state asserts—and Apanovitch does not dispute—that the DNA testing at issue here was not performed as a result of a request by Apanovitch. . . . The parties agree that the state asked the Cuyahoga County Coroner to test the vaginal slide and that at the state’s request the federal district court ordered Apanovitch to provide his DNA for comparison.”


We recognize that it may seem unduly formalistic or unfair to foreclose the trial court from considering a postconviction claim that is based on DNA testing that the state itself procured. But it is the prerogative of the General Assembly, not this court, to set the terms by which an offender may pursue postconviction relief.

Justice Terrance O’Donnell’s (now retired) concurrence is also worth highlighting. Beating the drum of finality (and even dropping the rare judicial exclamation point), O’Donnell took issue with the court’s decision to remand rather than dismiss Apanovitch’s petition entirely:

No motions are pending in this matter and the majority rules today that the trial court had no jurisdiction to consider the postconviction petition. Hence, there is nothing before the trial court for it to consider. This court should bring this matter to a conclusion!

In the end, the insistence on finality, a hollow value used to paper over unspeakable cruelty, is one of the criminal legal system’s most telling and maddening features. Its defenders quite openly admit that, in their view, it is better to get things wrong—to imprison and even execute innocent people, for example, or to allow racial discrimination to drive convictions—than to bother with the time and expense of getting things right. 

But in truth it is more than the “administrative” burdens they want to avoid. It is an honest reckoning with how the system actually works—how it consistently fails to meet its own lofty ideals and inflicts incalculable harm—along with the role that powerful people, from prosecutors to judges to lawmakers, play in maintaining that system, that gets neglected when the stamp of finality comes down. It is courts acting, as Justice William Brennan once wrote, out of “fear of too much justice.” In that sense, finality does preserve a certain superficial “integrity” in legal proceedings, but it is not the kind worth defending. 

Vacancies & Elections

Arizona Supreme Court Justice Bill Montgomery gets historically bad grades. Three Arizona supreme court justices, all former prosecutors, face retention elections this year, and one of them—former Maricopa County Attorney Bill Montgomery—just earned the worst performance evaluation in state history. 

From the Arizona Republic:

Surveys from people who appeared before Montgomery on the state’s high court gave him historically low marks. And a commission designed to review judges, in an effort to help voters, gave him the lowest score ever recorded

The scorecard comes from the Arizona Commission on Judicial Performance Review, which “evaluates appointed judges by surveying witnesses, jurors, court staff, and anyone else who has observed the judges’ work.” Montgomery scored especially bad on judicial temperament and communication, and, The Republic reports, “the total number of commissioners who voted that Montgomery met [the accepted standards of judicial performance] was lower than any other Supreme Court justice’s score in the history of the review process.”

As a prosecutor, Montgomery was known for prosecuting record numbers of drug offenders and wielding his influence and close political ties to block reform legislation that would reduce Arizona’s enormous prison population. Now just three years into his judicial tenure, voters will decide if the first justice with failing marks will also be the first justice they ever throw out of office. 

A Republican sheriff runs for state supreme court justice in Illinois. Illinois Republicans would take control of the state supreme court for the first time in over 50 years if they win both seats on the November ballot, a potential momentous shift in power that would flip the current 4-3 majority held by Democrats. One of the Republicans vying to retake power is former prosecutor and Lake County Sheriff Mark Curran. Curran’s run for state supreme court follows his failed bid in 2020 to unseat U.S. Senator Dick Durbin.

Curran was rated “not recommended” for the state’s highest court by the Illinois State Bar Association, and the Chicago Sun Times has reported on some of his aggressively rightwing and fact-free views:

[L]ast December, Curran attended a downtown anti-abortion rally during arguments in the Dobbs v. Mississippi case. Even though the U.S. Supreme Court hadn’t yet overturned Roe v. Wade, Curran posted on Facebook: “For those that believe in the protection of the child in the womb than (sic) you should thank Donald J. Trump.”

Asked who won the 2020 presidency, Curran told WBEZ, “It’s kind of irrelevant, but Joe Biden won the election.” But in a Jan. 3, 2021, Facebook post, Curran circulated now-debunked claims about vote fraud in the presidential elections.

On guns, Curran said he would not discuss how he might rule on any Second Amendment cases if elected. But on Instagram, during his U.S. Senate bid, Curran posted a photo of youth holding military-style rifles with the caption, “I protected your Second Amendment rights as Sheriff and I will do the same as your senator.”

While state supreme courts (along with the federal bench) are lousy with former prosecutors, only a few current state supreme court justices once worked as law enforcement officers: Ohio Justice Sharon Kennedy and Montana Justice Dirk Sandefur were local police officers; Missouri Justice W. Brent Powell was a juvenile detention officer; and New York Court of Appeals Judge Michael Garcia was Vice President of the Americas for INTERPOL and Assistant Secretary of ICE.