« Clemency in Virginia delays execution 1000 | Main | The real shame about shaming punishments »

November 30, 2005

How about a whole new structure for federal capital appeals?

As I lamented in this post, debates over habeas corpus reform often get conflated with debates over capital punishment.  That concern — along with the latest blogosphere buzz about the Supreme Court's docket and Will Baude's great posts here and here suggesting we "move death penalty cases out of the Supreme Court to a specialized criminal court" — has me thinking about a whole new structure for federal appeals of state capital cases.

Here's the (crazy ivory tower?) idea: for state capital defendants, why not eliminate general federal habeas rights and instead create a single federal tribunal ("the unified federal capital court" or UFCC) in which state capital defendants have an appeal of right following direct state appeals and also following collateral state appeals?

This proposal needs to be considered in light of the current reality that federal habeas corpus currently serves as a (flawed and imperfect) federal "appeal of right" for state capital defendants after they have completed all state appeals.  Unfortunately, federal capital habeas actions are often ineffective and always inefficient.  Not all issues are cognizable in federal habeas and these cases clog the dockets of both federal district and circuit courts in active death penalty states. 

Instead of spreading this litigation around the country (where we often see very different results because of different judicial attitudes in, for example, the Fifth Circuit and the Ninth Circuit), we could consolidate all this federal appellate action in the UFCC.  I imagine the UFCC to be an "inferior" court: defendants (or states) losing in the UFCC could appeal to the US Supreme Court.  But SCOTUS would likely reject cert. except when the legal issues transcended the specialized universe of capital litigation or when the High Court was troubled by the direction in which the UFCC was moving the law.  (I surmise these basic dynamics now shape when SCOTUS decides to grant cert. in patent cases coming from the Federal Circuit.)

I am not sure there would be any certain losers as a result of this proposed transformation of federal capital appeals (although the judicial philosophies of the UFCC judges would surely impact outcomes).  I am sure that federal district and circuit courts, whose dockets would be freed from all the collateral capital litigation, would be certain winners under this new plan.  And this proposal could free debates about habeas corpus from the distorting influence of debates over the death penalty.

November 30, 2005 at 12:28 AM | Permalink


TrackBack URL for this entry:

Listed below are links to weblogs that reference How about a whole new structure for federal capital appeals?:


I like the idea...but there are also problems.

In every category of law, there can be circuit splits. Look at the myriad ways the circuits have handled Booker plain error. Why shouldn't Congress create a special "Court of Sentencing Appeals," to ensure that all federal sentencing issues are handled uniformly nationwide?

For that matter, why not create nation-wide circuits for other vexing issues that require highly specialized knowledge, such as ERISA, copyright law, Section 1983 violations, and so forth? There is already one specialized circuit (the Federal Circuit), so there could be others. Interestingly, it is comparatively rare to see a Supreme Court grant from the Federal Circuit.

Any restructuring of the judiciary is politically explosive. Democrats would filibuster the bill that creates a brand-new court where President Bush would get to appoint all the judges. Republicans would do the same if there happened to be a sitting Democratic president.

Posted by: Marc Shepherd | Nov 30, 2005 9:37:08 AM

Greater specialization in the federal courts is a bad thing -- particularly within a politically charged area of the law like criminal law. We have seen the "bureaucratization" of bankruptcy law in the Bankruptcy Courts and the monomania of patent law in the Federal Circuit. As judges' perspectives narrow, the law suffers -- and, worse yet, fragments.

Politically, this is an extraordinarily dangerous idea. In Tennessee, we have bifurcated our intermediate appellate courts between civil and criminal cases, and the political battles that have resulted (mainly behind closed doors, but bad nonetheless) are appalling. Prosecutors take a remarkably focused view of specialized criminal courts.

Law is law. And it is less politicized when it remains a generalist process. We worked too hard to merge law and equity (forget about baronial courts, ecclesiastical courts, admiralty courts, commercial courts) to see our courts sliced up into subject-matter ghettos.


Posted by: Mark | Nov 30, 2005 10:09:54 AM

Mark's points are well taken. Another solution occasionally bandied about is to create a "super-circuit" that is wholly dedicated to resolving circuit splits.

Now, you could argue that we already have a court for that purpose--the Supreme Court. But let us accept arguendo that the Supreme Court doesn't have enough bandwidth to deal with all of those cases. So, the "super-curcuit" would take them, and unlike SCOTUS, would not be permitted to deny review where there is a split.

You still have the political issue of how to staff this court, since neither party will allow a brand new court to be created that is populated wholly with judges chosen by the other party's president.

Posted by: Marc Shepherd | Nov 30, 2005 12:10:12 PM

I would also remit Professor Berman to his previous post on one advantage of maintaining capital punishment: that the importance of certain issues in capital cases underscores the continued injustices existing in the criminal justice system more generally.

Stated more clearly, when a federal court closely scrutinizes a capital case for constitutional error and finds one, it creates a precedent whose application will not be limited to capital cases. So, for example, a finding in a death case that certain actions by counsel constitutes ineffective assistance may later be applied to a federal prisoner filing a 2255 motion to vacate his draconian sentence for marijuana possession.

That example is a rather crude one, but the point is that forcing federal courts to be more than rubber stamps in some cases might mean that they stop acting like rubber stamps in an increased number of criminal cases. Along with the other problems cited by commentators, this consideration counsels against creating a specialized capital court.

Posted by: LT | Nov 30, 2005 12:22:24 PM

Good debate, folks, though LT's point actually allows me to refine my argument: the reason we should have a UFCC is because federa capital litigation now tends to distract from other injustices in other kinds of cases, rather then enable broad remedial efforts.

Too often, sadly, the special rules developed for capital defendants do not help non-capital defendants -- e.g., there can be no mandatory death sentence (even for prison killers), but there are plenty of mandatory life sentences allowed (even for low level drug users).

Though I think capital cases can and should alert us to system-wide injustices, I fear that they tend to distract many courts from doing more of the work that needs to be done in the non-capital arena.

Posted by: Doug B. | Nov 30, 2005 12:36:48 PM

As to the merits of a UFCC, I see some kinks. First, the court would have to be very large if it would take over all the judicial review of capital cases now done by district courts and fed courts of appeals. (So large, it would eventually be subject to annual debates about whether it should be split.) Second, would the court have both trial judges and appellate judges? Federal court review does, sometimes, require an evidentiary hearing. Third, in light tediousness of such work (enormous records, lack of breadth of issues (all murder all the time), stressful consequences in every cases) could you really attract the caliber of judges required and that we now get in federal court? Fourth, if we have one federal court reviewing state capital cases, won't we lose the benefit of the percolation of ideas among many courts before they're resolved by the supreme court? Fifth, I don't believe you can "eliminate general federal habeas rights" without amending the constitution.

This discussion, recognizing the burdens of capital litigation, highlights the need to consider abolition. The burden of capital cases is enormous, and goes well beyond its impact on the federal court dockets. Every month, the California Supreme Court has one or two capital direct appeals on its oral argument calendar, each resulting in a very lengthy published opinion. And the trials (and retrials) are not cheap either. Creating a UFCC would means that enormous resources would still be spent on capital cases.

Posted by: Jonathan Soglin | Nov 30, 2005 1:45:18 PM

All great points, Jonathan, although your final point highlights one virtue of a UFCC: by consolidating all this work, the costs of fairly administering capital punishment will be more tangible and we could have a candid discussion of whether all these costs are worth bearing.

You are right to note a number of practical kinks, though I think they could be worked out, and I also do not think a workload of probably 200 appeals per year would be too much for this court to bear.

Posted by: Doug B. | Nov 30, 2005 1:54:36 PM

This is an idea that sounds attractive at first glance, until you consider that similar experiments, such as the Texas Court of Criminal Appeals, have resulted in the judges appointed to that court being chosen for their law and order credentials.

One real problem is that direct review of state supreme court decisions, even when called for is in short supply. One solution might be to make the federal court to which an appeal of a state supreme court decision is appealled on direct appeal the U.S. Court of Appeals with jurisdiction over that state, rather than the U.S. Supreme Court. This would allow for many more cases with federal questions to be resolved on direct appeal, rather than ducked by the U.S. Supeme Court in the direct appeal and in the appeal from state habeas rulings (since it knows it can catch those issues a third time on federal habeas review).

Posted by: ohwilleke | Nov 30, 2005 7:20:45 PM

Gotta change the name, tho', or else people will refer to the slim chances of getting relief from a court where the common result is: "UFFC'd".

Posted by: Barry | Dec 1, 2005 8:31:16 AM

Kudos to Barry. In light of our experience in Tennessee (and apparently the experience in Texas), Barry would probably turn out to be right, as well as clever.

Posted by: Mark | Dec 1, 2005 11:11:25 AM

Post a comment

In the body of your email, please indicate if you are a professor, student, prosecutor, defense attorney, etc. so I can gain a sense of who is reading my blog. Thank you, DAB