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August 21, 2007

Ground-breaking empirical work on habeas actions under AEDPA

As detailed in this news release from Vanderbilt, a new study led by Professor Nancy King "finds that fewer state convictions and sentences are being ruled unconstitutional by federal courts."  Here's more background about this important work from the press release:

The two-year study was partially funded by the National Institute of Justice and is the first to examine the effects of 1996 amendments to the habeas corpus law that apply when state prisoners challenge their convictions and sentences in federal court.  The research examined nearly 2,400 non-capital cases, randomly selected from among the more than 36,000 habeas cases filed in federal district courts nationwide by state prisoners during 2003 and 2004, and more than 360 death penalty cases filed in 13 federal districts between 2000 and 2002.

Before the 1996 law, known as the Anti-terrorism and Effective Death Penalty Act or "AEDPA," federal courts granted a writ of habeas corpus to a state prisoner in about one of every 100 non-capital cases filed.  A writ of habeas corpus is a mandate from a court to a prison official ordering that an inmate be be released from custody, re-sentenced, or retried.  King's research found that after the new law was enacted, the grant rate was closer to one in every 300 cases.

The full report can be found at this link, and an executive summary is available here.  There is so much interesting data and food-for-thought in this report, I am not sure where to begin.

I must first spotlight that the data show that state capital defendants fair much, much better than non-capital defendants in federal habeas proceedings.  Specifically, the report finds that, of 2384 non-capital filings examined, petitioners received relief a rate of 1 in every 341 cases filed, whereas of the 267 capital cases examined, about 1 in 8 petitioners received relief. In other words, in capital cases, the habeas relief "grant rate is 35 times higher than the rate in non-capital cases."  Thus, it seems if you really want to get a federal habeas court to take your procedural complaints seriously, try to make sure you get convicted of murder and sentenced to death in state court.

August 21, 2007 at 04:45 PM | Permalink


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Tracked on Aug 22, 2007 10:41:40 AM


Even with such a large sample, I'm a bit skeptical. The expected number of grants at a 1% grant rate is 24. The 95% confidence interval with a 2,400 case sample size and a true 1% grant rate is roughly 16-32. The result was roughly 8 grants.

Clearly, this is a decline in the grant rate, but small percentages tend to be erratic. An unexpected decision properly preserved arising from a single SCOTUS case could easily sway a dozen cases either way in a given year on a non-recurring basis.

A low grant rate was an intended result of AEDPA, but the big lag between its enactment and this statistically significant change in grant rates has me questioning whether AEDPA is an important cause of the change.

Posted by: ohwilleke | Aug 21, 2007 5:48:12 PM

In addition to the problem ohwilleke notes, another problem in this kind of research is separating the effects of various changes. The prior number of 1%, I suspect (I didn't find the source on a quick skim of the report), is the Flango study for the National Center for State Courts. That sample was taken when Teague was brand new and its implications were not fully appreciated by many courts.

That's not a criticism of the researchers. It is a limitation of this kind of research that needs to be kept in mind when interpreting the results.

Posted by: Kent Scheidegger | Aug 21, 2007 6:58:32 PM

One interpretation is that AEDPA is working insofar as its aim was to reduce habeas petitions. When it comes to empirical work, its all in the interpretation!

Posted by: | Aug 21, 2007 8:14:28 PM

One of the interesting things I noted from my initial reading of the report is that the AEDPA is actually SLOWING down the process for adjudication in the lower federal courts almost doubling the adjudicatory time. Indeed, this study was done years after the AEDPA was passed and delays can't be blamed on this being new stuff for the federal courts. Cases held to be time-barred took even longer.

The other thing I noted is that state court delay counted for most of the time of the delays in execution, not federal litigation.

Other surprising findigs were that:

- “Neither the presence of an evidentiary hearing or discovery significantly affected either processing time or likelihood of termination, once other factors were taken into account.”

- “Cases with a defaulted claim took longer than cases without such a ruling.”

It should also come as no surprise that the Southern District of Texas (Harris county's district) grants relief at a lower rate than any other district in Texas.

Posted by: karl | Aug 21, 2007 9:41:40 PM

Yes, no surprise that the SD of Texas has the most unworthy claims and/or claimants. Sorry again, Texas, specifically Houston. Lot's of the bad apples there.

No surprise either that state courts delay and dilly dally even more knowing that federal habeas no longer has teeth, knowing that state decisions will be deferred to in almost every instance.

Too bad for all the non-capital cases too, that all the time and resources are spent on the capital cases that there is nothing left for the non-caps. After all who cares if life or death is not at stake. What's a few years here or there, eh? We'll find a way to pay the bills as long as we keep em locked up and the pipeline full of new soon-to-be ex cons.

A study like this might present interesting statistical issues, but it doesn't take a brain surgeon to see that Habeas is on the way to being written out of the Constitution.

Posted by: Major Mori | Aug 21, 2007 9:53:51 PM

Major, If you are not THE Major Mori, then I would suggest changing your sock.

Secondly, habeas is not being “written” out of the constitution. Unless you are arguing that federal courts should conduct de novo review of state convictions, there will be some limitations upon the substantive law that Federal Courts will apply. Now, I am willing to entertain the notion that there should be complete federal review of state convictions, but I think you need to come out and declare that that is your position.

Third, There are limits to empirical legal research. While it does have its role, the nature of precedent means that essentially once one court “finds” the law, so long as it is binding, the others will follow. In fact, even if it is persuasive, once one conviction is overturned, similar issues will never come before the court again.

Fourth, Most people agree that Texas is filled with bad people who should be in jail or killed by the state. This is why their jails are so full, and they execute so many people, even if their convictions are legal.

Posted by: S.cotus | Aug 22, 2007 12:34:57 PM

One of the conclusions of the study was that after AEDPA, the length of time to resolution of these cases increased. How much do the states really care about the non-capital cases? If the vast majority of convictions are being upheld, then the time doesn't matter. With respect to non-capital cases, I suspect the states like the fact that successive petitions are, as a matter of statute, strictly limited.

Posted by: federalist | Aug 22, 2007 2:18:19 PM

"Major, If you are not THE Major Mori, then I would suggest changing your sock."

Um, and you really are THE Supreme Court of the United States??

Posted by: Kent Scheidegger | Aug 22, 2007 4:28:56 PM

If nothing else, this study is a much more useful and comprehensive baseline for future evaluation of Habeas than anything to do.

Posted by: Gray Proctor | Aug 23, 2007 10:30:16 AM

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