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May 16, 2009

Seeking more number crunching and deep thoughts on the great writ

US District Judge Lynn Adelman's new article titled "The Great Writ Diminished" aspires to "stimulate a discussion about the current state of habeas corpus.  Wonderfully, the article has already started such a discussion in these blog comments, and I want to keep the momentum going in this post.

Specifically, I would like to see a lot more number crunching concerning habeas appeals of state convictions in federal courts.  Judge Adelman builds off the ground-breaking 2007 Vanderbilt study which, as discussed here, found 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.  These national numbers may obscure lots of significant state variations and also significant issue-specific variations that could and should tell us a lot more about how the great writ is really working.

I also would like to hear more thoughts about what might seem like the "right" number of habeas grants, especially in light of the inevitable need to triage federal resources.  I share Judge Adelman's instinct that habeas relief is granted too infrequently in non-capital cases, but I also fear that habeas relied is grant too frequently in capital cases.  And yet, maybe this is a healthy pattern of "habeas irregularity" on the theory that, given the stakes involved, it is generally sensible for federal courts to micro-manage state capital cases even though this might necessarily mean they will often show perhaps too much deference to state non-capital convictions.  Indeed, arguably this is exactly what the Congress that passed AEDPA might want to be happening.

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I'm not sure how to go about such an undertaking. I will point out that of the judge's own grants approximately 1/4 were reversed.

This seems a lot like the discussions over offenders being death penalty innocent, there is rightly a lot less concern about over-punishing people who are ethically deserving of punishment than there is on inflicting any punishment on those who are actually innocent of any wrong doing.

Posted by: Soronel Haetir | May 16, 2009 2:21:14 PM

There is no "right number." You look at each case and decide it on its merits.

Posted by: Bill Otis | May 16, 2009 4:17:07 PM


The question is more "How long do you spend looking?" Given enough attention every trial will likely lead to discovering some error. However judicial resources are not unlimited and thus be allocated somehow.

I will say that if our standard were the proverbial "better 10 guilty men go free than 1 innocent punished" our resource allocation is likely failing if you ignore over-punishing those who did fact commit some crime related to the charge.

Posted by: Soronel Haetir | May 16, 2009 6:34:21 PM

This ironic. It absolutely requires the Rent Seeking Theory to explain it.

The death penalty defendant is far more likely to be guilty, the other defendant far less. The death penalty defendant deserves a far smaller fraction of successful writ application.

The funding. Follow the funding.

Posted by: Supremacy Claus | May 17, 2009 2:44:30 AM

"The death penalty defendant is far more likely to be guilty"
Any non-anecdotal evidence to back that up, SC? I'd love to hear it.

Posted by: Gray Proctor | May 17, 2009 10:20:55 AM

I sure hope that is true. As a taxpayer and owner of the law, it had better be true.

Compare. Top investigators. 66% solve rate, compared to what? 1% solve rates for other crimes? $1 million trial. Multiple appeals. Versus. A five minute conversation over lunch, where 20 plea deals are reeled off between prosecutor and public defender.

If the innocence (false positive) rate in plea deals is not higher, I would be surprised. That implies, a really unbelievable fraction of our prisons beds and costs are wasted on innocent people.

I assumed a 20% innocence rate in death penalty cases. That is actually defensible. It coincides with the likelihood of guilt under a "beyond reasonable doubt" standard. I don't know the name of an evidence standard between "beyond a reasonable doubt" and "absolutely no doubt," if one exists. If there is one, it might be enacted in Evidence law. A 20% false positive rate is quite disturbing in a capital case.

It should not be a pretext to end the death penalty, however. It should be a good reason to improve the outrageous incompetence of the legal and judge profession. These are anti-scientific Medieval garbage playing dunderheads, with former IQ's of 300, now mentally crippled by the legal education filled with indoctrination into supernatural Medieval garbage.

Science is not required to validate a law, so said the Supreme Court, but 100 years ago. It is time that all anti-scientific legal utterances be void, not voidable. Something does not exist in nature? Cannot be shown to have reliability (repeatability and agreement among people), it is void.

Example. Intent. Specifically where is that in nature? OK, it is hidden in the brain, beyond the reach of current technology. Two people looking at the same scenario at the same time, can they agree intent took place? Or the same person, looking at the same scenario twice, can he agree with himself? Show me those statistics. Reliability is not validity. However, there is no validity without reliability.

So what legally? No so what, legally. Science is required by procedural due process and by the Establishment Clause. No supernatural doctrine in the law of our secular nation.

Posted by: Supremacy Claus | May 17, 2009 10:58:16 AM

I put up a link to Texas' data here. Our Court of Criminal Appeals' rate is about one in 661.

Posted by: Gritsforbreakfast | May 17, 2009 11:03:04 AM

Here is a simple method to enact inter-rater reliability without fancy scientific studies.

[I can't believe I am helping the defense of criminals here.]

The jury vote should be by secret ballot and limited to one round. That would force a measure inter-rater reliability on the verdict. That is the only vote with any scientific validity.

Once the discussion starts, the jury vote reflects the opinion of the biggest loud mouth. The rest of the folks are desperate to get back to family and work, after the devastating effects of jury duty on their lives.

Other ways may enhance the jury vote, but they all help the defense.

Posted by: Supremacy Claus | May 17, 2009 11:05:00 AM

Death penalty defendants get counsel who can assist every step of the process, including habeas corpus. Non-capital habeas corpus defendants are often pro se, and, depending on the state, usually do not have the right to counsel after their first appeal of right and in post-conviction proceedings. This is consequential for habeas purposes because the two easiest ways to kick a habeas petition is by the AEDPA statute of limitations and procedural default. Presumably, a death penalty defendant with counsel will make far fewer procedural errors at the state court level, and won't file their petition beyond the AEDPA's one-year statute of limitations. Pro se petitioners, however, can find their petition dismissed rather easily for failing to comply with the statute of limitations, or by making a procedural error at the state court level (untimely state filing, res judicata, unfair presentation). Consequently, lots of non-capital habeas petitions are often dismissed because of these procedural errors, regardless of the merits. That should, in part, explain the disparity between the higher percentage of grants of habeas petitions in capital cases, as opposed to non-capital cases.

Posted by: T.O. in Buffalo | May 17, 2009 2:38:39 PM

The Great Writ requires capital letters--"great writ" hardly does it justice. This is something we can trot out on July 4th as a talisman. Judge Adelman has written a great piece on the Great Writ and its demise. Some of the practices which state courts employ to diminish the Constitution are prevalent in every state. For example. In Missouri, after Crawford comes down, the state Supreme Court writes a good opinion (State v. Justus) adopting Crawford. Yet new cases come to the courts of appeals and they do an analysis which ignores Crawford and Justus. This business of giving less than lip service to the United States Constitution and/or to U.S. Supreme Court cases is prevalent in criminal cases because the state appeals courts realize that there is no second guessing by federal courts.

The failure of law schools to teach the Constitution and the history of human rights is one of the underpinings of this ignorance of the law and disrespect for the Constitution. The bar associations do little to foster education and knowledge of Constitutional jurisprudence. The Missouri Courts Bulletin has several catagories of law which one attorney will post short summaries of new developments. In the Constitutional Law section they only deal with State constitutional issues and then only civil issues. When Crawford came down there was no mention anywhere in the Missouri Courts Bulletin.

Law schools have a lot of resources devoted to law reviews and other public interest projects. It would be a great service to the Great Writ is some projects were begun which analyze extent to which trial counsel ignorance results in grave constitutional right waivers in pleas and trials. From there they could follow up and see to what extent state law rubric is employed to further dump on the defendant and the Constitution in the appellate courts. Try this in one circuit court--say Crawford County, Missouri, for all child abuse cases filed after Crawford v. Washington was decided, to the date of the end of the study.

Posted by: mpb | May 17, 2009 2:43:27 PM

mpb-- Regardless of the policy argument, isn't your argument about the majesty of the Great Writ somewhat undermined given that no one until sometime in the '50s thought the writ had anything to do with reexamining the jurisdictionally valid judgments of state courts? The Founders indeed valued the writ--as a protection against arbitrary detentions by the executive. The current conception of HC as guaranteeing 2 more full rounds of judicial review after conviction and appeal may or may not be a good idea, but it's hardly some ancient tradition at the heart of American liberty.

Posted by: Jay | May 17, 2009 5:38:06 PM

I find the comments about Mo. and Crawfordvery interesting in light of the prosecution against Drew Peterson in Ill. I've seen several reports that the prosecutors intend to use exactly the sort of evidence that was deemed inadmissable in Giles, the commentators bring up how several states have forfieture by wrongdoing for such evidence. Yet none of those commentators even bother mentioning that SCOTUS has already directly addressed that issue.

In a way, federal courts seem to be left trusting state courts to get it right with regard to federal law but they often don't. And AEDPA sets the bar for error very high.

Posted by: Soronel Haetir | May 17, 2009 6:58:02 PM

My proposed Amended 28 U.S.C. 2254, 2554:

Any prisoner may, at any time, bring an action to establish a grave doubt as to his or her guilt, or to establish that the prosecuting sovereign is constitutionally prohibited from criminalizing his or her conduct. No error in his judgment shall be considered under this subsection that is unrelated to his guilt. No limitation shall be enforced on the evidence available to demonstrate or refute the defendant's factual guilt. Successive petitions shall require new evidence.

Any prisoner may, at any time, bring an action to demonstrate that he or she was sentenced on the basis of a material misconception of the facts surrounding his or her offense, or that the prosecuting sovereign is without the constitutional power to impose a sentence of that severity for his or her conduct. No limitation shall be enforced on the evidence available to demonstrate or refute the appropriateness of the sentence under this subsection. Successive petitions shall require new evidence.


This directs the courts' resources to the most pressing moral question -- the appropriateness of the sentence. Yes, it diminishes the State's interest in finality, but imprisonment is a continuous punishment, and ought to be continuously justified. I doubt that district courts would be significantly more overburdened by successive petitions than they are where prisoners can avail themselves of any change in the governing procedural law. Capital cases might be complicated a bit, but in lots of cases there are filings up to the last minute any way. At least they will be for the right reason.

Posted by: RW | May 18, 2009 3:03:27 PM

RW: About 40% of the time of the federal court is taken with frivolous prisoner claims. This proposal would increase that fraction.

Posted by: Supremacy Claus | May 18, 2009 3:55:35 PM

You have no definition of frivolous, no cite for your claim, and no explanation for your prediction. Yes, it would give some prisoners a cause of action that they dont yet have -- a freestanding innocence claim. But it would also take away other claims that they have now that are unrelated to guilt, which surely now constitutes the dramatic majority of habeas cases. More importantly, it focuses the litigation on an issue prisoners can actually understand, rather than on a bunch of legal procedural claims that they often do not, thus eliminating a great deal of the wasted time and frustration that pervade habeas work.

I dont see why a factual claim of innocence is more likely to be frivolously raised than say, a claim of a coerced confession, an ineffective assistance claim, or a Brady claim. The proposal tells courts to do what they are for, to distinguish between guilty and innocent (and oversentenced and fairly sentenced) individuals. Your claim that guilty prisoners will pretend to be innocent is obvious enough, but is no more reason to prohibit innocent prisoners from trying to prove it than the fact that they filed it out of time. If there is a habeas statute, people will abuse it and will make any claim that is necessary to get out of prison -- whatever standard we establish, people will not like prison. Why not make the claim the morally relevant one? District courts receiving a successive petition, moreover, would need only scan for the claimed new evidence in order to determine whether it is properly filed. If the claimed new evidence is not plausibly sufficient to raise a doubt as to guilt, they could do the same thing they do with a successive petition in the status quo. Prisoners raising multiple successive petitions alleging facts that they then fail to prove could be dealt with by PLRA statutes.

If the only reason to keep ultra-deferential review of state court rulings, and the prohibitions on successive petitions, unexhausted claims, and out of time petitions is that they arbitrarily cut back on the work load (which they dont, because I guarantee you, we lose as much of our time is spent trying to weed through time lines, tolling, hyper-technical AEDPA case law, arguable cases of exhaustion, and prison mail logs as we could possibly gain by avoiding the merits) we might as well just perform a lottery to determine which petitions get reviewed on the merits. At least that would be honest.

Posted by: RW | May 18, 2009 4:29:25 PM

RW: You are obviously not a lawyer. How do I know? Your proposal is one that favors facts, justice, and logic. The lawyer has put up insurmountable barriers to your suggestions. They have little chance of being enacted as new laws.

I am not a lawyer. I support your proposal with your restriction designed to redirect the court to substance.

Posted by: Supremacy Claus | May 18, 2009 5:32:12 PM

I actually am a lawyer, but I regret it every day. I think the interchange between lawyers and persons of other progessions on this blog is one of the great things about it.

Posted by: RW | May 18, 2009 5:40:55 PM

It is useful, I think, to look beyond federal habeas corpus review, which is now very rare outside capital cases, to other forms of extraordinary review that are rare, e.g., U.S. Supreme Court review, clemency, en banc review by circuit courts, legislative retroactive repeal of legislation, private bills, judicial vacation of cases not on direct review in light of mass judicial system failure (e.g. the Pennsylvania judicial bribes or a pattern of lies in Texas by key drug informants in a county).

All have become markedly less common, and have been disproportionately focused on death penalty cases.

The rarity of federal habeas review comes down to a couple of things: first, it takes so long to run down the clock that the vast majority of sentenced defendants are released at the end of their term rendering their cases moot before they can file a timely administratively exhausted federal habeas petition, and second, in the absence of counsel, inclination and ability to file procedurally valid habeas petitions doesn't overlap much with having valid claims.

Some of the most effective uses of habeas corpus are the result of some sort of non-profit organization actively seeking out meritorious cases and provided the legal ability to prosecute them properly, rather than self-selection by prisoners themselves. This explains a lot of the capital cases v. ordinary case disparity in success rates.

Another notable point is that while many death row inmates win relief sometime after their conviction, that few have all criminal charges against them set aside. The typical habeas corpus petition success, it seems, is a death row inmate who has a sentence commuted to a life or long sentence after a decade or more of appeals.

Posted by: ohwilleke | May 18, 2009 6:16:07 PM


That is the sort of thing I was talking about with the distinction of finding those people who are innocent of the death penalty. Finding those convicts seems to be a major focus of our current system yet strikes me as a poor use of resources compared to locating individuals who are in fact innocent of even minor crimes. A wrongful felony conviction for someone who is going to be released anyway strikes me as a greater injustice than possibly executing someone who did in fact commit the crime but lacked some necissary element to be death eligible.

Posted by: Soronel Haetir | May 18, 2009 7:57:35 PM

"A wrongful felony conviction for someone who is going to be released anyway strikes me as a greater injustice than possibly executing someone who did in fact commit the crime but lacked some necissary element to be death eligible."

Its a shame that we have to choose, but we probably do, given limited political tolerance for habeas and other extraordinary review. Given this forced choice, I agree that the optimal resource allocation would require movement in the direction of non-capital prisoners.

Posted by: RW | May 18, 2009 8:27:59 PM

RW: You are a lawyer. You oppose stare decisis. You do not believe in the forfeiture of an appellate point by the failure to raise it at trial. You believe appellate courts should look at facts.

Posted by: Supremacy Claus | May 19, 2009 12:08:21 AM

So, what about those inmates who spend hours writing, tearing up and then re-writing their pleas for help, which then are carelessly waved away as 'frivolous' simply because they were not written up by a lawyer, but their merit is ignored?

NC purposely keeps law books away from inmates, cuts the funding for Prisoner Legal Services, and does all in its power to keep innocent men in the prison. We are living proof, yet no one, NO ONE will lift a finger in this state to give an innocent American justice, so he sits, locked up in Marion, NC with over 100 years with no evidence, being instead racially profiled, discriminated against, after his jury threatened, as well as a witness who could give testimony to that man's innocence?

123 years is a death sentence, a way to bury a man alive so he can neither defend nor be heard, and seventeen lawyers later, we still have no help for our family, destroyed by a man who overstepped his prosecutorial duty, and floundered into prosecutorial misconduct and far worse. There will be no release at this rate. Where is the justice in any of this, North Carolina?

Posted by: Rochelle | Mar 8, 2014 12:09:56 AM

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