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May 15, 2009

"The Great Writ Diminished"

The title of this post is the title of this piece on SSRN by US District Judge Lynn Adelman.  Here is the abstract:

In 2007, an empirical study of 2,384 randomly-selected habeas corpus petitions filed in United States District Courts by state prisoners in non-capital cases found that district courts granted relief in only seven. This amounts to one grant out of every 284 petitions, or a grant rate of approximately 0.35 percent. The author, himself a district judge, has granted habeas relief in 12 cases out of approximately 300, resulting in a grant rate that is much higher than the rate found by the empirical study. Thus, if the author’s experience is any indication, on average district courts are not granting habeas petitions as often as they should be. If this is so, the Great Writ has been diminished.

This article seeks to stimulate a discussion about the current state of habeas corpus.  Relying on his own experience with habeas petitions, the author explains why habeas is an important component of our justice system and details the cost of a diminished writ.  The article concludes by offering suggestions for making habeas corpus a more potent tool for protecting the constitutional rights of criminal defendants.

May 15, 2009 at 12:04 PM | Permalink

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This amounts to one grant out of every 284 petitions, or a grant rate of approximately 0.35 percent. The author, himself a district judge, has granted habeas relief in 12 cases out of approximately 300, resulting in a grant rate that is much higher than the rate found by the empirical study. Thus, if the author’s experience is any indication, on average district courts are not granting habeas petitions as often as they should be.
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Am I reading this correctly?

Is he really saying "I grant 4% of habeas petitions, but a random sampling shows that others are granting habeas petitions at just under one tenth of that rate. Therefore, everyone else is wrong"?

I don't see Judge Reinhardt or Merritt in the author footnote, so maybe I'm just reading this incorrectly.

Posted by: anonymous | May 15, 2009 1:28:23 PM

Skimming the article, I think my reading of the abstract was basically right, but the proposition isn't as unreasonable as it sounds. Judge Adelman basically thinks that habeas review is important and that judges should pay more attention to it than they do. The numbers confirm his intuition that he's more interested in habeas petitions than the average judge and he makes the case that it is the others who should change.

I'm not sure if I agree or disagree at this point, but it's a good article and should add to the debate.

Posted by: anonymous | May 15, 2009 1:38:29 PM

Imagine a doctor who prescribes a drug at 10 times the dose as everyone else. It is OK to publish that. However, shouldn't the doctor provide some outcome data to show his high dose works better? If a doctor were to say, this is my dose, all others should do the same because I said so, that would be unprofessional conduct, in the absence of validating data.

Posted by: Supremacy Claus | May 15, 2009 2:44:27 PM

I discussed this before in the context of the death penalty. All remedies have a dose response curve. A low dose does not work. An excessive dose is called a poison. There is no other way than to test each dose in a group of research subjects. The correct fraction of writs granted is unknown unless external results data validates the dose. Too few, and innocent people are in a cage. Too many and the crime rate goes up.

http://supremacyclaus.blogspot.com/2007/06/death-penalty-and-dose-response-curve.html

This principle applies to all remedies. It shows the lawyer profession as quite naive about the work not being done before law is made, incompetent, and a form of quackery. It is time for it to grow up.

Posted by: Supremacy Claus | May 15, 2009 3:15:27 PM

I think the analogy would be to a doctor who thoroughly checks his patients, even when their complaints are a bit incoherent or inarticulate, and finds a serious condition requiring treatment in about 4 of 100 of cases, whereas other doctors are not as careful or are dismissive of their patients ill-formed complaints, so only catch about 1 in 300, despite the fact that the average rate of the serious condition is likely equal in both patient populations.

Posted by: Observer | May 15, 2009 3:20:23 PM

All procedures are remedies, including the diagnostic exam. All remedies have a dose response curve. If you do a totally thorough job on each and every patient, the waiting list grows. This waiting list can itself be toxic by making sick people wait.

In the medical literature, there are studies of excessive testing. For example, if it takes $50,000 worth of lab tests to discover one case of anemia, that is not cost effective.

If the judge wants to show underdiagnosis, he should provide outcome data. For example what is the rate of innocence. Half of his writs prevailed. All were on technical grounds. We have no idea if a guilty person was released. The agreement of the higher judges is a weak validation. An external validation would be preferable.

Posted by: Supremacy Claus | May 15, 2009 4:02:15 PM

Perhaps if the serious condition requiring treatment was something subjective or often overdiagnosed, or if it was the sort of diagnosis that the patient stood to gain from...

Posted by: anonymous | May 15, 2009 4:58:59 PM

I am not disputing your advocacy of greater care. I am asking the author to go beyond the 12 anecdotes, beyond the technical lawyer gotchas in the writs, beyond the concurrence of higher judges. Give us outside, validating data about how many more innocent people were released by the greater care. Was even one innocent defendant released? Or, did the released defendants go on to commit hundreds of crimes a year and devastate their neighborhoods?

We do not know. We know that technical lawyer gotchas worked on higher judges. Not an index of validity to me.

Posted by: Supremacy Claus | May 15, 2009 5:20:32 PM

Following up on anonymous's 4:58 comment, the more accurate analogy is likely to a psychiatrist who diagnoses people as bipolar when they are merely moody, depressed when they are merely temporarily blue, or having adjustment disorder when they are merely reacting normally to severe adverse events in their lives. Some federal judges find a constitutional violation in every state-court ruling they disagree with, but that is not the standard.

Posted by: Kent Scheidegger | May 15, 2009 5:47:41 PM

Kent: How would you know the psychiatrist was mistaken without a follow up of the patients outside of the practice?

Posted by: Supremacy Claus | May 15, 2009 7:00:41 PM

Kent wrote: "Some federal judges find a constitutional violation in every state-court ruling they disagree with, but that is not the standard."

Given that a constitutionally error-free trial is quite rare, federal judges should be able to find a constitutional violation in every state court ruling they disagree with.

Posted by: DK | May 15, 2009 9:04:50 PM

To determine if Adeleman was obtaining a false diagnosis or if he was curing an otherwise terminal illness, couldn't we look to his reversal rate in habeas cases? How many of the 12 granted cases were appealed and/or reversed?

Posted by: DEJ | May 15, 2009 11:57:19 PM

DEJ: From the article.

"Of the twelve grants, the state appealed nine. Subsequently, the state voluntarily dismissed two appeals.30 The Seventh Circuit Court of Appeals affirmed four grants31 and reversed three.32 As to the reversals, the Seventh Circuit suggested that one was a close call33 and, in a second, adopted a rule that had previously been law only in the Second Circuit.34
Concerning the grounds for the grants, I granted two writs based on ineffective assistance of trial counsel,35 one based on denial of the right to a public trial,36 one based on denial of the right to present a defense,37 one based on denial of the right to an impartial jury,38 two based on Miranda violations,39 one based on denial of the right to counsel of choice,40 three based on denial of the right to counsel on appeal,41 and one based on denial of the right not to be placed in jeopardy twice for the same offense.42"

All pretextual, bogus, criminal lover lawyer gotcha. There is an infinity of rules. Every one on earth has violated a lot of them. So all lawyer gotcha and parsing is a form of bad faith. It should be criminalized, because it is rent seeking. That is a synonym for armed robbery.

I saw no external substantive validation to the self-dealing lawyer propaganda.

Posted by: Supremacy Claus | May 16, 2009 12:06:54 AM

DEJ wrote: "To determine if Adeleman was obtaining a false diagnosis or if he was curing an otherwise terminal illness, couldn't we look to his reversal rate in habeas cases? How many of the 12 granted cases were appealed and/or reversed?"

It should not be assumed the federal appeals courts are committing malpractice in habeas cases any less than the district courts, so I'm not sure what this would tell us.

Posted by: DK | May 16, 2009 1:05:11 AM

Supremecy Clause,

I am impressed by your comments in this thread, you've actually said something useful. :)

Just like I would like some way to evaluate the 95% of cases that plead out to the underlying reality I do think it would be useful to somehow evaluate these cases.

Posted by: Soronel Haetir | May 16, 2009 1:48:33 AM

If I suggest that a rate of anything be increased by ten fold, shouldn't there be a burden on me to show some external validation, such proof of innocence? How about a lesser proof? Defendant was not rearrested for 10 years, for example.

I support accuracy. The false negative rate of the criminal law might be 90% or more. That means 90% of crime goes without any response from the law.

It is equally ghastly there may be an astronomical false positive rate. If the rate of innocence on death row is 20%, could it be 40% or 50% or more in the ordinary trial or plea bargain?

These are unbearable failures stemming from the Medieval lawyer methodology still in place. This methodology is not only in total failure, it is unlawful. It stems from the Catechism, in violation of the Establishment Clause.

Nor am I in any way bashing the Church. They said God could read the intent of the hunter who shot another thinking it a deer, or shot another because the other's wife paid him $10,000 to do so. God would do so after their reaching Heaven. Not even the Medieval Church ever claimed, man could read minds.

Back here, on earth, it is completely unsettled that the careless hunter is less dangerous than the contract killer, and should be allowed to go home. That decision requires analysis of the individual's past acts, none of which involve any mind reading. That is true, if public safety is the aim of the criminal law. Public safety is the sole purpose of any value to the taxpayer.

The problem is so big, and this judge is so trivial, picayune, so into lawyer parsing and gotcha on technicalities, it is frustrating.

People like Prof. Berman, with IQ's of 300, have been so mentally crippled by the lawyer education, it difficult to get through to them that there is a problem, never mind the path to the remedy. They just refuse to open their eyes to what is obvious to the ordinary citizen with a high school diploma.

Posted by: Supremacy Claus | May 16, 2009 2:18:18 AM

"Just like I would like some way to evaluate the 95% of cases that plead out to the underlying reality I do think it would be useful to somehow evaluate these cases."

Me, too, Soronel.

Especially since the "underlying reality" typically includes confessions leveraged by the threat of stunningly long prison sentences, ruinous legal expenses and the daunting prospect persuading a jury that deified federal agents and prosecutors were wrong.

The cases that most interest me are the ones in which targets plausibly threatened with 30-year sentences end up doing 3-months home detention.

That's a big lever the government has.

Posted by: John K | May 16, 2009 10:03:34 AM

John K,

The reality I am interested in doesn't include those elements, what I am interested in is the rate at which overcharging for example leads to pleas that are consistant with what the offender actually did. Also of course what the outer bounds of that process.

Reading appeals rulings without any rigorous analysis I get the feeling that drug crimes tend to give the offender a break over what could actually be proven, where assault cases tend to over prove and thus likely over punish.

However we don't have any magical means to return to the scene to view what happened so that feeling is just that.

Posted by: Soronel Haetir | May 16, 2009 11:02:29 AM

I find it amazing that Article 1, Section 9, of the U.S. Constitution states: “The privilege of the Writ of Habeas Corpus shall not be suspended. Yet, Congress killed this privilege without amending the Consitution with the enactment of Antiterrorism and Effective Death Penalty Act of 1996, and the Supreme Court upheld it. This is truly sad when you have Congress watering down our Constitution & our Supreme Court ignoring what the Constitution states.

Posted by: Giovanni LoPresti | May 20, 2009 9:54:06 PM

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