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Eric Enlow

The procedural legal principle Res Judicata ["matter having been adjudicated" -- the full maxim is "res judicata pro veritate acciputur"] is the immediate subject here. That is, once a legal matter has been fully litigated, the same matter cannot be reopened between the same parties. This principle holds true even if it becomes clear that the original decision was grounded on error or the law subsequently changes. It operates more broadly in the criminal defendants favor through the principle prohibiting double jeopardy. This is not only a rule in criminal procedure; it is a general procedural principle applying across the law, applying whether criminal or civil/large or small - from a parking ticket's fine to a natural life sentence; from a small claims order compensating for a fender bender to a bankrupting mass tort claim.

The basic reason for the principle is clear: there must be an end to legal disputes at some point, e.g., after reviews of law during pleadings, facts during trials and the whole operation again on appeal, if the law is ever to settle matters. If matters were forever open to relitigation, it is not clear how any legal process could function. The legal maxim is "interest reipublicae ut sint finis litium."

In fact, however, it is not true that a criminal life sentence can never be reconsidered. The principle of res judicata applies far more weakly to judgments for crimes requiring incarceration. In addition to special rules allowing for overturning convictions where there is clear error, this is true as a matter of constitutional law because the action of habeas corpus allows unique collateral review of criminal imprisonment. For example, although this would not be available in civil cases or cases involving criminal judgments less than imprisonment, a variety of issues relating to the unconstitutionality of the original conviction or the legality of the conditions of present imprisonment can be raised through habeas corpus. A habeas corpus action in principle could lead to the reversal or modification of the original sentence.

As importantly, unlike in civil cases, the chief ground for the remedying of errors in criminal sentences lies with the executive branch. The U.S. President and all governors have constitutional rights of pardon and commutation that allow them to change any natural-life sentence, abolishing all criminal liability or reducing the sentence at their discretion. Furthermore, the legislatures are fully capable of accomplishing the same thing by means of a general law, and though it cannot order a person convicted by means of a law, it can reduce present sentences. T

Therefore, the factual premise of the piece as described seems to me somewhat unfairly put. In our system of government with sovereign power divided among the branches of government, the rationality of the system of natural-life sentences must evaluated by considering all the powers to change sentences given across the branches. Although it is true that res judicata limits the judicial ability to modify sentences to special cases, it is not true that the government is not open to such modification. Anyone can file a petition with the Governor or President for clemency.

The real failure, I would suggest, lies in the diminishing willingness of the executive to pardon and commute. But this is the result of political distrust in executive officials, just like the rise of mandatory sentencing is result of distrust judicial discretion. Voters don't trust the judgment of Presidential pardons, see Mark Rich. Part of the cost of dramatic political action taken by the U.S. judiciary over the last fifty years -- whatever one thinks of its merits -- is that its discretion is no longer trusted by a substantial portion of the citizenry. The polarizing effects of recent decisions of the courts where it was seen to be intervening in matters once firmly left to the people is unlikely to restore this trust soon. The cost of corruption in Presidential pardons of the rich and judicial activism in favor of political constituencies is borne in part by those whose experience of genuine metanoia our leaders cannot be trusted to discern.

Schliesser, Eric

Eric, most of your comments are orthogonal to the issues at hand; and you seem to have misunderstood Lackey's (and my own) understanding of the law. She (nor I) does not claim that a "criminal life sentence can never be reconsidered." (You missed my footnote.) She is writing about cases where -- for the sake of argument -- she assumes no error has been made.
Having said that, in your last paragraph you do speak to the issue at hand in terms of our democratic culture. I have to think about the merits of your interpretation.

Eric Enlow

I don’t see that I mistook Lackey’s understanding of the law. Lackey claims it’s irrational for legal systems to make final legal decisions about another person’s life that rule out the possibility of later considering other evidence.

I described the general legal principle by which this is done in every area of law, the rationale of the principle, and the special exceptions made for incarceration -- like habeas corpus, pardon and commutation, which are not appeals and are not limited to questions of guilt or innocence -- which make her argument particularly weak with respect to sentencing issues.

To address the issue she has chosen without addressing these basic aspects of the law response to her concerns is an omission that weakens her argument of irrationality.

Simply put, the law provides for the consideration of what she would have the law consider in respect of sentencing, but in any case, the law’s application of res judicata to a sentencing decision is a particular application of a general principle with a clear rationale, which she doesn't address, that is adjusted to take account of the severity of incarceration.

Maybe lawyers can’t see squarely with philosophers, but that doesn’t seem orthogonal to me.

Schliesser, Eric

Sorry, Eric, but you are simply missing the point. Prof. Lackey and I are discussing cases where (by stipulation) there is no error or nor evidence of innocence.

Eric Enlow

I'm equally sorry, but it would seem to any lawyer that you are missing the point. Res judicata is the relevant legal principle describing why, error or no in the initial judgment, changed circumstances do not allow a reconsideration of a judgment once made.

You've fixed on it but nothing I said depends on her remarks being predicated on problems relating to initial error.

Cheers, and I hope your talk went as well as all your preparation deserved.

Schliesser, Eric

You take legal principles as given, but as I point out in the post that's a matter of politics. Changed political circumstances may (need not) make one reconsider those principles.

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