Abstract
Finality has long been upheld as a powerful governmental interest in the context of criminal adjudications. However, its nearly mythic status in our law belies its ongoing utility. Rather than fulfilling its historical goals of preserving resources and focusing incarcerated individuals on the task of rehabilitation, finality today undermines focus, facilitating mass incarceration and perpetual punishment. We are not required to accept finality as the last word; instead, we can and should interrogate its value in light of the system we have built.
This Essay briefly traces the historical development of finality in American jurisprudence. It then outlines the subsequent rise of mass incarceration and perpetual punishment to reveal how several key background assumptions that informed finality have changed fundamentally in the past five decades. Drawing on work done by the Orleans Parish District Attorney’s Civil Rights Division from 2021 through 2024, it analyzes how real-world experiences bolster the claim that finality can and should be revisited and reimagined. The Civil Rights Division waived finality and associated procedural defenses in many cases to facilitate the merits review of already-final criminal matters or reach post-conviction plea agreements as a means to rectify historical wrongs and harms of constitutional dimension. This experience in New Orleans suggests strongly that several key assumptions underlying the concept of finality do not withstand empirical scrutiny.
Ultimately, the Essay advances three claims: (1) finality should be reassessed in light of the historical developments of mass incarceration and exploding sentence lengths; (2) finality should be treated as a discretionary tool rather than a mandatory outcome or reigning presumption; and (3) our understanding of finality should be informed by practice and experience, including what happens when it is waived in service of other priorities and goals. In light of lessons gathered from the Civil Rights Division’s experience, the Essay concludes that finality is not—and should not be—the last word.
Recommended Citation
Sarma, Bidish
(2026)
"Finality is Not the Last Word,"
Akron Law Review: Vol. 59:
Iss.
3, Article 3.
Available at:
https://ideaexchange.uakron.edu/akronlawreview/vol59/iss3/3