The Doctrine of Finality

A few days ago, we put up a post that revisited Ex Post Facto in light of the recent Supreme Court Decision in Ellingburg v. United States. The essence of Justice Thomas’ concurring opinion was that if it walks like a duck…, if it quacks like a duck…, it doesn’t matter if you want to call it a chicken… it’s a duck. In actual terms, Justice Thomas said that even if the legislature wants to call a law “civil”, “remedial” or something else, if its impacts are punitive, it’s punishment. Thomas took it a step further and essentially called out Smith v. Doe for applying a more stringent test than required (“This test has included up to five factors, most of which allow a legislature to avoid the Clauses through labeling or semantics” and “the modern framework… allows a legislature to manipulate when the [Ex Post Facto] protection will apply”). Even though the case had nothing to do with the registry, the opinion is certainly helpful.

So let’s add another important principle in criminal law to the argument, and that’s the Doctrine of Finality. Finality reflects the settled expectation that, once the criminal process has ended and the punishment set by the court has been carried out, the legal consequences of the conviction are complete. It requires that punishment be fixed, knowable, and final. The defendant, the court, and society are entitled to rely on that conclusion. When new, punitive burdens are later attached to the old conviction, they disrupt this settled understanding and undermine constitutional principles (in this case, due process and double jeopardy).

Post-sentence residency and proximity restrictions function, in practical effect, as additional penalties imposed outside the original sentence. Lawmakers say they are not punishment – that they are civil and remedial. But they severely constrain where a person can live, work, or even just “be”. Essentially banishment. It often forces displacement, homelessness, the inability to associate with others, or in some cases exclusion from entire communities.

Take, for example, Senate Bill 212 that we’re actively advocating against. Say you committed an offense 20 years ago which landed you on the registry. You’ve long ago completed your sentence. For two decades you’ve lived a law-abiding life, started a family, opened a business, obeyed the law, and all the other things that constitute “successful” reentry. Your day consisted of the ordinary things people do. You wake up, go to the gym, head off to work, come home to your family. For fun, you take out the boat to go fishing and occasionally take the family to a Miami Heat game. This has been your routine and by any reasonable account you’ve “successfully reentered”. All of a sudden, with no change in circumstance on your part, your gym is off limits because LA Fitness has a swimming pool. Your boat is useless to you because you can’t go near a waterway. The Heat’s arena is on Biscayne Bay. Need to attend a trade show? Well you can’t because guess what… the hotel has a pool. Same with your parent’s condo… can’t visit them anymore either. Family wants to attend your nephew’s wedding? Better do a google map first because if there’s a park, playground, school, pool, etc. within 200 feet of it, you won’t be celebrating with them.

But at least you’re grandfathered into your home, right? Better hope your landlord lets you stay there forever and you can afford it, because even though you’ve not been subject to a residency restriction before, if you change residences, you can no longer live in 80% of the state. Now good luck trying to find a place to live! You might, but it’s 300 miles away. What about your business? Your wife’s job? Your kids need to transfer schools… And even if you manage to keep your career and marriage intact through all this turmoil, what new rules and restrictions are going to be imposed next legislative session? See, it’s not far fetched that almost every year for the rest of your life the screws will tighten. In fact it’s nearly certain! The registration statute has been amended in 1998, 1999, 2000, 2002, 2004, 2005, 2006, 2007, 2009, 2010, 2012, 2013, 2014, 2015, 2016, 2017, 2018, 2021, 2024, and 2025. What’s to come next? What happened to the Doctrine of Finality?!?!?

When these kinds of restrictions are enacted long after sentencing, they alter the legal consequences of the conviction in ways neither contemplated by the sentencing court nor disclosed to the defendant at the time of plea or sentencing. This retroactive augmentation of punishment (quacks like a duck, right?) conflicts with the principle that criminal sentences are final. They erode the jurisdictional boundaries that the Doctrine of Finality is meant to enforce. By imposing these sweeping restrictions and bans through civil or regulatory labels, governments effectively reopen completed sentences to extend and add to punishment indefinitely, without any individualized findings or procedural safeguards. This blurring of “civil” regulation and criminal sanction threatens finality by allowing the state to re-litigate punishment long after the judicial process has ended.

If the state can continually add new, burdensome consequences to a conviction long deemed final, the Doctrine of Finality becomes illusory. If the rules and restrictions keep changing every year, the consequences of a criminal conviction are anything but fixed, knowable, and final.

FAC is asking advocacy groups and legal scholars around the country to start reconsidering some arguments that were previously foreclosed by Smith v. Doe. Between the Clements court considering whether residency restrictions can render someone tantamount to “in custody”, the Ellingburg decision, and now this loud quacking Senate Bill 212, its time for someone to call this thing a duck!