Harmless Error and the Rights/Remedies Split

Abstract

This Article will proceed in three parts. Part I will recount the history of the harmless error doctrine in the United States, comparing and contrasting it to the other constitutional doctrines that separate rights and remedies principally, qualified immunity and non-retroactivity in criminal appeals. This analysis leads to two conclusions. First, none of these doctrines can exert a positive influence on the substance of the law if treated as a threshold question. That is, unless courts look to the merits of constitutional claims first, and only after resolving those claims look to whether the prevailing party would be entitled to a remedy, these doctrines will serve to stagnate constitutional law rather than allow it to grow and develop. Second, although each of these doctrines, if properly applied, has the capacity to influence positively the development of constitutional law, only harmless error has the capacity to permanently sever rights from remedies. Because non-retroactivity and qualified immunity place later claimants in a better position than earlier ones, the likelihood of a remedy being provided to harmed parties increases over time. By contrast, the harmless error inquiry treats each case in a vacuum; later claimants are no better off than are earlier ones, and there is less impetus for government agents to change their behaviors to conform with the law. In Part II, I will point to a concrete example of harmless error's capacity to create a firewall between constitutional rights and remedies. Drawing on a database of nearly 300 California Supreme Court decisions in death penalty cases, I will show that during a ten year period, over ninety percent of death sentences imposed by trial courts were upheld on appeal even though nearly every case was found to have been tainted by constitutional error. This analysis illustrates both how malleable harmless error is in practice and how powerful a tool it can be for a court that wishes to affirm (or reverse) a decision below. Part III will present a modest proposal for reform of harmless error doctrine in the United States. In that Part, I will draw on the conclusions reached earlier to propose two changes in the way the harmless error doctrine is applied. First, harmless error analysis should not be made a threshold question. That is, a court should never defer the merits of a defendant's claim by finding that any error that might have occurred at his trial was harmless. Rather, courts should begin their analysis by considering the merits of the constitutional claims brought by criminal defendants and should rule on the harmlessness of trial errors only once they have found that those errors in fact occurred. Second, and more fundamentally, I will argue that in order to make harmless error function more like qualified immunity and non-retroactivity, its structure must be changed in order to make it more closely resemble those doctrines. To wit, I argue that the doctrine must contain a temporal component if it is to change not only the substance of constitutional law but also the behavior of government agents; the doctrine must put later litigants in a better position vis-a-vis recovery than earlier litigants. The most effective way to do this, I will argue, is to borrow the reasonableness standard from qualified immunity. I will propose that if a prosecutor should have known that her conduct was constitutional error, the government may not seek to benefit from the harmless error rule with regard to that error. It is only if both suggestions are adopted that the desired effect can be achieved. Without the first change, important questions of constitutional law will not be reached; without the second change, there will be little pressure on prosecutors to comply with the law.