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April 17, 2011

Important new book urges "more prudent use of habeas in state criminal cases"

Book-cover I am pleased to be able to blog about an important new book that arrived in the mail this week and that today has the showcase of the New York Timesop-ed page.  The book, shown here, is titled "Habeas for the 21st Century: Uses, Abuses and the Future of the Great Writ" and is authored by Professors Joseph Hoffmann and Nancy King.  The book now has this supportive website and this new blogon habeas developments, and today's New York Times includes this op-ed from the authors headlined "Justice, Too Much and Too Expensive." The start of the op-ed effectively summarizes some of the key themes and proposals in the book:

Habeas corpus: it is, as Alexander Hamilton suggested, the “bulwark” of a Constitution.  A habeas petition gives a single federal judge the authority to decide if a prisoner is being held unlawfully and order his release.  At Guantánamo, habeas plays a crucial role: it provides the essential means by which the federal judiciary can ensure that innocent people are not mistakenly held, indefinitely, as enemy combatants. This is an example of habeas at its best.

But habeas is also subject to abuse. State prisoners convicted of non-capital offenses file more than 17,000 habeas corpus petitions in federal court each year.  Each petition challenges the constitutionality of some aspect of the prisoner’s conviction or sentence, even though that conviction and sentence already have been affirmed by at least one state court, and sometimes several.

Only a tiny fraction of these habeas petitioners — estimated at less than four-tenths of one percent — obtain any kind of relief, which is usually a new trial, sentencing or appeal, after which they may be sent back to prison.

Each petition consumes the scarce resources of both the federal and state governments. Indeed, the never-ending stream of futile petitions suggests that habeas corpus is a wasteful nuisance. By almost any measure, the use, and abuse, of habeas by convicted state prisoners is a failure, one that could corrode one of the most revered pillars of our legal system.

We need a new approach — one that ensures a more prudent use of habeas in state criminal cases.

Congress should limit habeas review of state criminal cases to two categories in which it actually can do some serious good: capital cases and cases in which the prisoner can produce persuasive new evidence of his innocence.  Limiting habeas to these cases will help protect the long-term future of the writ in all of its varied forms.

I am a big fan of work by Professors Hoffmann and King, both in the arena of habeas review and concerning many other criminal justice topics.  And, based on what I already know about this book from reading the first chapter and prior habeas research by Professors Hoffmann and King, this book move quickly to the topic of my must-read list.

That all said, I am not a big fan of the policy prescriptions of Professors Hoffmann and King here.  I agree that modern habeas review is broken, but I propose a much different solution in this recently published article: Making the Framers’ Case, and a Modern Case, For Jury Involvement in Habeas Adjudication, 71 Ohio St. L.J. 887 (2010).  Here is a snippet from my introduction that speaks in part to the proposals of Professors Hoffmann and King:

Especially given the widely shared view that current federal habeas review of criminal convictions is deeply flawed — and with Professors Joseph Hoffmann and Nancy King contending that federal habeas is beyond salvaging and proposing total elimination of federal habeas review for most state prisoners — it is time for policymakers and commentators to consider a bold new approach.  This Essay suggests that such a new approach could and should incorporate a return to the structural and procedural vision of criminal procedure that the Framers of our Constitution had in mind at the Founding nearly 250 years ago, and it contends that, by incorporating a jury component in federal habeas proceedings, the modern collateral review process will serve as a more effective and robust check on the operations of modern criminal justice systems.

April 17, 2011 at 01:38 PM | Permalink


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A different take on this important subject is set out by Kent here, http://www.crimeandconsequences.com/crimblog/2011/04/habeas-and-actual-innocence.html#comments.

It is followed by a long and thoughtful comment by Professor Hoffman.

Posted by: Bill Otis | Apr 17, 2011 7:01:32 PM

Step 1: rig the rules so that almost nobody can win a habeas petition, even if he has been genuinely wronged by the state criminal justice system.

Step 2: call habeas a waste of time because almost nobody wins.

Want to _really_ reconfigure habeas to "do some serious good?" On the one hand, eliminate Teague and the "clearly established Supreme Court precedent requirement," ease up on procedural defaults, and keep the focus on whether the trial was fair rather than the arcana of the AEDPA. On the other hand, have a law clerk pre-screen pro se claims and summarily dismiss those that are obviously frivolous or have been waived.

And for what it's worth, non-capital litigants need habeas a hell of a lot more than capital ones, because they're far less likely to have received serious review by the state courts. But I digress.

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Posted by: ella | Apr 18, 2011 4:41:24 AM

"And for what it's worth, non-capital litigants need habeas a hell of a lot more than capital ones, because they're far less likely to have received serious review by the state courts. But I digress."

I don't think you digress at all.

As it presently stands, a person who is convicted of a murder he might not have committed and is sentenced to life in prison gets less review and less resources than an unquestionably guilty murderer who is sentenced to death.

That is bass ackwards. Under no circumstances is the life imprisonment of an innocent man less of an injustice than the execution of any murderer. Why do we devote such large resources to re-re-re-litigating the penalty phase of capital cases in which the guilt verdict is rock solid? We should simply abolish federal habeas review of the penalty phase. Some of the procedural limitations on reviewing guilt determinations on federal habeas can be loosened in return for the Friendly Filter -- a colorable claim of actual innocence.

The extremely low grant rate in noncapital cases, BTW, predates AEDPA. See V. Flango, Habeas Corpus in Federal and State Courts (NCSC 1994).

Posted by: Kent Scheidegger | Apr 18, 2011 12:44:46 PM

I concur with the LWOP parole scenario. I currently have 3 such cases in various post-conviction, post-direct appeal stages. In two, I'm forced into federal habeas because we couldn't get post-conviction hearings on serious IAC issues, and the third presents a "fair trial" but actual innocence issue.

The core problem in non-capital cases, is that the vast majority are filed pro se and unless a clerk, magistrate Judge or Judge sees a potentially meritorious issue early on and appoints counsel, the pro se filings become the tail that wags the dog.

Posted by: Don Rehkopf | Apr 19, 2011 9:40:26 PM

Doug, if you haven't seen it, over the holidays I read, and highly recommend, Paul Halliday's new "Habeas Corpus: From England to Empire," which is a truly impressive, really cool piece of primary historical research with lots of modern implications. If this book is Habeas for the 21st Century, his is Habeas for the 18th. Halliday found an untapped treasure trove by examining the contents of hundreds of actual writs issued by the King's Bench for several hundred years going back to the Magna Carta. Previous histories had all focused on usually-appellate judicial rulings; his is the first to evaluate comprehensively the contents of the writs themselves. The logic of early habeas, he argues, was completely different from our modern conception: Under British common law it was an expression not of the rights of the individual but the sovereignty of the king. The subject has implications for current affairs b/c under SCOTUS jurisprudence, Americans supposedly have as a floor the habeas rights available under British common law in 1789, and Halliday argues they were both more expansive in some ways than American courts have recognized, perhaps more restrictive in others, and by 1789 more fraught with power struggles between courts and Parliament than early judicial opinions and later historical treatments understood. Really neat, thought provoking project and first-rate research, even with fairly readable prose for such a dense and obscure topic.

Posted by: Gritsforbreakfast | Apr 20, 2011 10:59:50 AM

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