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November 29, 2011

"A Crisis in Federal Habeas Law"

The title of this post is the title of this new piece by Professor Eve Brensike Primus, which is now available via SSRN. Here is the abstract:

Everyone recognizes that federal habeas doctrine is a mess. Broad change is necessary, but to be effective, such change must be animated by an overarching theory that explains when federal courts should exercise habeas jurisdiction. In their recent book, "Habeas for the Twenty-First Century: Uses, Abuses, and the Future of the Great Writ," Professors Nancy King and Joseph Hoffmann offer such a theory.  Drawing on history, current practice, and empirical data, Professors King and Hoffmann find unifying themes that not only explain our past use of the Great Writ but also give guidance regarding how we should interpret the writ going forward.

Habeas for the Twenty-First Century is nuanced while still being thorough, and it explains fairly technical material in an engaging and interesting way. Its breadth, however, is also the source of one of its problems.  Professors King and Hoffmann want both to identify the overarching themes that can explain habeas in all of its diverse forms and to make concrete proposals for reform that have a reasonable chance of being adopted.  These two goals, however, are often in tension. What is politically feasible is not always consistent with their interpretive approach.  Rather than admit this tension and explain why they choose one goal over the other, Professors King and Hoffmann sometimes stretch their definition of what constitutes a crisis worthy of habeas intervention in an attempt to make it fit their reform proposals.

This is particularly true in the context of their approach to federal review of state criminal convictions.  In that context, King and Hoffmann use history to argue that habeas’s primary role is to intervene whenever a federalism crisis places the balance of power between the federal and state governments in jeopardy.  Such a federalism crisis exists, they say, only when a state rejects federal law because it is federal.  Nonetheless, King and Hoffmann’s own proposal for reform contains provisions that would allow state prisoners to file habeas claims, such as claims alleging actual innocence, even when there is no evidence that the states are hostile to these claims because of their federal nature. So if King and Hoffmann’s proposals for reform are sound, their statement of the circumstances in which federal habeas review is appropriate is too restrictive.

In this Review, I will argue that King and Hoffmann should expand their concept of what constitutes a crisis worthy of federal habeas intervention to include situations in which a state systematically violates criminal defendants’ federal rights or systematically fails to provide defendants with adequate opportunities to vindicate those rights.  A state’s entitlement to autonomy and respect is at its nadir when the state routinely flouts federal law, whereas the federal interest in using habeas review to catalyze structural reform in such a case is at its zenith.

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November 29, 2011 at 09:17 AM | Permalink


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I have not read anything but reviews of Hoffman's and King's book; and I have not read the review arguing for a limited expansion of what Hoffman and King propose. But the problem with habeas is the AEDPA, plain and simple. Habeas started expanding, because the States were the bad guys. They still are. The AEDPA was the result of the mistaken belief that state courts can be trusted to follow federal law. But they still cannot get it right. And they cannot get it right over and over. Just a couple of weeks ago, the 7th Circuit commented in a habeas case that the Indiana Supreme Court apparently didn't think the U.S. Supreme Court had meant what it said in a case. It is not because the law is federal that the state courts ignore it: it is because it compels a result that is, from a certain perspective, undesirable. As long as they get federal law enough right to be recognizable as a good college try, though, the AEDPA saves their appalling decisions.

Something like 1 in 2000 non-death-penalty cases get habeas relief. Something like 1 in 2 or 2 in 3 death-penalty cases get habeas relief, at least with respect to sentencing. And now the fight is all about whether the state judges could have been "fair-minded" when they issued their decision. It is an awful position lawyers are in when they have to argue that the state court judges could not have been "fair-minded." In Indiana, actually, such an argument has gotten lawyers slapped, even when there was pretty good evidence to support the argument.

That habeas is a failure is not a reason to narrow its reach. It is a reason to get rid of the AEDPA, which is a disaster. If you think it's not, consider that it permits federal courts to give a passing grade to Indiana state court analyses of Strickland IAC claims that run, "Because there was no deficient performance, there was no prejudice." This is practically boilerplate, actually.

The States and their courts have been the bad guys since the Civil War--particularly the southern States. (It isn't some New England State that keeps couqhing up Brady violations bad enough to get the attention of The Nine.) What possible reason is there to think that had changed by circa 1996? Federal courts made toothless by the AEDPA remove any effective external control on what the state courts do with federal constitutional criminal law. Just look at the cases.

Posted by: Michael Ausbrook | Nov 30, 2011 12:02:26 AM

The Supremes pulled the pin out of Pinholster and burst the percevied habeas balloon. Not only is AEDPA the problem so is the Supreme Court. Once they get rid of their habeas docket they can even do less work than they do now.

Posted by: k | Nov 30, 2011 9:11:18 AM

Michael Ausbrook speaks the truth.

Posted by: law-one | Nov 30, 2011 11:48:11 AM


I wouldn't be so hard on the Supreme Court...I believe Pinholster and its older brother Richter were unanimous in the standard of habeas, and Sotomayor only got her own vote on her view of whether 2254(e) evidence can be considered to overturn a state court decision. This doesn't seem to be a liberal/conservative divide--SCOTUS is just doing it's job.

As MA says, the problem really is with AEDPA. By its plain terms AEDPA allows a defendant to get completely hosed at the state courts--but so long as the court isn't completely out to lunch, it gets affirmed.

I understand why Congress did it--too many courts weren't taking deference to state courts seriously. But it seems like the standard is too high at this point.

Posted by: Res ipsa | Nov 30, 2011 12:55:10 PM

Some elected state judges deliberately refuse to rule correctly on federal constitutional issues because of fear of the voters. They knowingly pass the buck to appointed federal judges to correct on habeas.

Alas, with AEDPA, there is not much room for review of the merits of claims. I do habeas work, and the procedural hurdles make it very hard to get to the merits.

Posted by: John Minock | Dec 2, 2011 8:13:47 AM

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