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March 26, 2009

"A Structural Vision of Habeas Corpus"

The title of this post is the title of this interesting new article by Eve Brensike Primus available via SSRN. Here is the abstract:

For decades, scholars and judges have assumed that federal habeas corpus review of state court criminal convictions should focus on the individual rights of habeas petitioners and that the federal courts should ask whether a state prisoner is being unlawfully detained because the state violated his individual federal rights. This individualized approach to federal habeas review is expensive, time-consuming, and woefully ineffective in stopping states from violating defendants' federal rights. Indeed, many states systematically violate criminal defendants' federal rights with impunity.

This Article proposes a new conception of federal habeas review under which the federal courts focus on states, not on individual petitioners. Federal habeas relief should be available when, but only when, a state routinely violates its criminal defendants' federal rights as part of a systemic practice. Reconfiguring federal habeas corpus review to focus on states and systemic practices would reduce redundancy, increase efficiency, and be more respectful of state institutions while, at the same time, recovering one of the original and now lost purposes of federal habeas corpus review.

March 26, 2009 at 08:18 AM | Permalink


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Необычный блог У меня почти такой же есть :) Правда он о другой теме :P Особенно главная необычная. Не как у всех сайтов слева www.capitaldefenseweekly.com Наверное последний блог без спама в комментариях :D Не забывайте рисунки добавлять к своим публикациям. Ещё бы меню переделать по красивее ?

Posted by: Удав | Mar 26, 2009 9:12:58 AM

Симпатичный блог У меня почти такой же есть :) Правда он о другой теме :P Особенно главная необычная. Не как у всех сайтов слева www.capitaldefenseweekly.com Наверное последний блог без спама в комментариях :D Не забывайте рисунки добавлять к своим публикациям. Надо бы меню переделать по красивее ?

Posted by: Рамиль | Mar 26, 2009 9:15:53 AM

Симпатичный блог У меня почти такой же есть :) Правда он о другой теме :P Особенно главная необычная. Не как у всех сайтов слева www.capitaldefenseweekly.com Наверное последний блог без спама в комментариях :D Не забывайте рисунки добавлять к своим публикациям. Ещё бы меню переделать по красивее ?

Posted by: Известия | Mar 26, 2009 9:20:37 AM

Professor Berman, unfortunately, it may be necessary to make the secret handshake code harder to read when we post so these bots can't auto post. That is, if you still have that option.

Posted by: George | Mar 26, 2009 10:55:14 AM

Ridiculous idea. Here in Michigan the appellate court intended to correct trial court errors routinely makes serious mistakes of law and fact. In the first habeas case I argued in the Sixth Circuit over 25 years ago, I remember the first question from the panel to the assistant attorney general: Your court of appeals didn't read the transcript!

It hasn't gotten any better; our appellate courts are result oriented. In a current habeas case, an assistant attorney general, in a moment of frankness, told the district judge that how much federal courts should defer in habeas cases depends on the quality of the state review, and then an anecdote about how the state court had made a ruling on a basis that the AG's office would not argue because it did not pass the laugh test.

John Minock

Posted by: John Minock | Mar 26, 2009 3:40:18 PM

If we really want to "recover the original" on federal habeas for state prisoners, why not just reenact the original language? "Provided, That writs of habeas corpus shall in no case extend to prisoners in gaol, unless where they are in custody, under or by colour of the authority of the United States, or are committed for trial before some court of the same, or are necessary to be brought into court to testify." Judiciary Act, 1789, § 14.

Posted by: Kent Scheidegger | Mar 26, 2009 3:51:17 PM

Just based on this abstract, the argument this argument is making is completely baffling. As a clerk for a federal district court judge, I cannot imagine any federal judge feeling in any way comfortable with or qualified to sit in the role as some sort of criminal justice commission to pass judgment on the efficacy and fairness of all state processes as they may affect a criminal defendant's federal rights. Even leaving aside the enormous federalism problems this seems to raise, the practical aspect of this is mind-boggling. Would the judge be expect to receive evidence from a panel of experts? Hold hearings? Would it be petitioner's obligation to marshall that? That seems a burden few firms or habeas offices would be capable of bearing. Or is the judge expected to conduct the inquiry him- or herself? How would that work? Maybe this is a failure of my imagination, but I truly cannot envision how this would be expected to function in any sort of effective and appropriate way.

Posted by: K. | Mar 26, 2009 5:25:46 PM

Also, having googled the author, I am flabbergasted that someone whose professional background is in capital defense and other pd work would be arguing for making federal habeas relief _more_ limited. This whole post is just baffling the heck out of me!

Posted by: K. | Mar 26, 2009 5:30:11 PM

Isn't this basically just Stone v. Powell applied to everything? And look how well that has worked in protecting the Fourth Amendment rights of the citizens as against state officials.

Posted by: David in NY | Mar 26, 2009 5:38:15 PM

Ok. Rarely do I say this but well, that article, it's just dumb. Baffling is the kind word. It's as if the author went out on a limb to be provocative and wound up in the realm of just plain silly.

Posted by: Daniel | Mar 26, 2009 7:16:04 PM

Unless someone slipped a time machine into the mix, the Judiciary Act of 1789 was before the 14th Amendment.

Posted by: George | Mar 26, 2009 7:28:57 PM

On rare occasions, Powell v. Alabama comes to mind, the Supreme Court will take up a case on certiorari and the end result is that state institutionalized practices resulting in lynchings can be systematically addressed. As with habeas corpus, it takes an individual's case, to achieve any result. Class action suits (civil in nature) are limited to conditions of confinement not the method of imposing the confinement. Section 1983 cannot be a substitute for the writ of habeas corpus when the object of the action is liberation of a person. The right of the individual person to seek judicial scrutiny of his or her confinement is one of the deeply rooted judicial rights and is one of the few if any personal rights set forth or "enumerated" in the original text of the Constitution. Art. I, Sec. 9.

Congress has been a great enemy of habeas corpus and except for the civil rights acts passed to implement the 14th Amendment following the civil war, there are few if any positive federal legislative acts.

The federal courts spend much creative time figuring out ways to impede the right of all persons to seek review of state court injustices. I hardly think that the federal courts will be willing or functionally able to address some "structural approach" to reform state court criminal procedures. Sen. Jim Webb's legislative initiatives which are referenced on another post in this blog offer some hope.

Posted by: mpb | Mar 27, 2009 9:02:01 AM


There was a civil war. Your side lost.

Posted by: DK | Mar 27, 2009 2:12:34 PM

DK, the Union side in the civil war was opposed to just punishments for people who commit murder, rape, or robbery (i.e., my side)? That's an interesting view of history, particularly in light of the fact that punishment for crime is expressly mentioned as an exception twice in the constitutional amendments the victors enacted.

Posted by: Kent Scheidegger | Mar 27, 2009 3:09:34 PM

In defense of the article --- the unusual proposal to grant relief only for recurrent/systemic violations is predicated on the notion that the frequency with which federal courts grant habeas relief approaches statistical insignificance; from that perspective, adoption of the proposal would lead to the desired result of more 2254 grants.

Posted by: V. Haltom | Mar 27, 2009 3:44:02 PM

I'm struggling to see why that's the case. It seems to me that this would be analogous to trying to establish Monell liability in 1983 cases -- which would make petitioner's route to recovery _more_ onerous and _less_ likely to succeed than otherwise.

Posted by: K. | Mar 27, 2009 4:34:35 PM

Ah, there goes DK with truly brilliant commentary. Don't worry, though, DK, you haven't slipped below the level of S.cotus. But ad hominem combined with stupidity is a great way to emulate S.cotus. To truly achieve his troughs, you have to figure out how to add pseudo-intellectual snark to your game.

My pro bono habeas case just got mooted--client is deceased. The guy had a meritorious case (and if I am saying that, you know it's true), and the quality of the opinion of the state appeals court was, to put it mildly, lacking.

What's the institutional remedy for bad state appeals court opinions? The state bar? Maybe members of academia could write reviews of state court opinions in various law journals. Of course, that doesn't deal with not for pub cases . . . . The smackdown of a federal habeas grant is just too far in the future.

Lest anyone think my pro bono habeas case opened my eyes, think again. I clerked for a state appeals court, and the judge made us read opinion that came out of the state appellate courts. The work-product was, to say the least, uneven. Now, I don't think criminals should get a free pass because of that or be released merely because the state court's opinion sucked, but, the quality of state court opinions is an issue.

Posted by: federalist | Mar 27, 2009 6:13:12 PM

The typical pattern in litigation for systemic violations of constitutional rights would be to establish a clear federal rule of law showing that a constitutional violation is taking place in one federal case, and then to leverage that authority into favorable rules in mandamus cases or injunctive relief suits to change the practice.

Mass relief for violations of constitutional rights is not unprecedented (e.g. the PA juveniles where the judges took bribes, and the TX fake informant cases, some of the Gitmo rulings, and the TX polygamous sect bust), but limiting relief to class actions (which is essentially what the proposal amounts to) seems to leave out too much.

One might argue that the statutory federal rules applicable to federal habeas corpus suits should be waived where they are brought by a lawyer on behalf of a class and allege systemic violations by a state. But, that would be a different argument.

Posted by: ohwilleke | Mar 31, 2009 1:38:27 PM

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