Failure to yield the right of way

Look really hard. Read every word. I guarantee you won't find the words "finality" or "closure" in the Bill of Rights. Not in the 4th Amendment. Not in the Fifth. Nor the Sixth or Eighth Amendments.

The state, and the judiciary, seem to think that the concept of "finality" is inherent in our system of (in)justice.

There is no sanctity in the concept of finality. And when the currents of justice and finality intersect, finality must yield the right of way. Jeff Gamso writes about a gentleman named Ezell Gilbert. Mr. Gilbert, it seems, made some bad choices and found himself in the federal penitentiary. The length of his stay was determined by a judge drawing lines on a matrix based on a finding that Mr. Gilbert was a career criminal. Mr. Gilbert protested, to no avail, that he was not a career criminal and that the sentence was 8 1/2 years too long.

Fast forward ahead 11 years and the US Supreme Court decided that another individual's sentence was determined incorrectly based on a finding that he was a career criminal. Mr. Gilbert filed a writ seeking a reduction in his sentence based upon the finding by the nine in black.

A panel from the 11th Circuit Court of Appeals heard Mr. Gilbert's appeal and found in his favor. The state asked for a hearing in front of the entire court. Last week, finality failed to yield the right of way and Mr. Gilbert was denied relief.

In a blistering dissent (and should there be any other kind?), Senior Judge James Clinkscales Hill called out his colleagues for allowing finality to trump justice.

I recognize that without finality there can be no justice. But it is equally true that, without justice, finality is nothing more than a bureaucratic achievement. Case closed. Move on to the next. Finality with justice is achieved only when the imprisoned has had a meaningful opportunity for a reliable judicial determination of his claim. Gilbert has never had this opportunity. 

A judicial system that values finality over justice is morally bankrupt. That is why Congress provided in § 2255 an avenue to relief in circumstances just such as these. For this court to hold that it is without the power to provide relief to a citizen that the Sovereign seeks to confine illegally for eight and one-half years is to adopt a posture of judicial impotency that is shocking in a country that has enshrined the Great Writ in its Constitution. Surely, the Great Writ cannot be so moribund, so shackled by the procedural requirements of rigid gatekeeping, that it does not afford review of Gilbert’s claim.

The same argument can be made about this idea of "closure." There is no such thing as closure.

Whatever happened, happened. And nothing can change that fact. If someone was the victim of a criminal act, they can't erase that. If anyone has ever had a friend or loved one killed, there will never be closure. Everyday is a new day to remember that someone isn't around anymore. Nothing that happens to the person convicted of the crime is ever going to change that.

The notion that somehow the need for "finality" and "closure" trumps the fact that we are all entitled to due process of law and the protections of the Bill of Rights is an insult to everyone who has fought to defend our freedoms and liberties in any forum. From the bench, it is an excuse for the unwillingness of the judiciary to ignore the denial of due process.

Mussolini made the trains run on time. So fucking what. Do you want cruel and ruthless efficiency or do you want justice?

Justice and freedom aren't very tidy concepts. They don't lend themselves to efficiency. But there are things more important than whether the trains run on time. Or whether we have "finality."