Harrington v. Richter: The Court is Ready for More Prudent Use of Habeas, is Congress?

In Harrington v. Richter, the Court reversed a Ninth Circuit decision finding unreasonable the state court’s rejection of Richter’s ineffective assistance of counsel claim.  Along the way, the Court (with Justice Ginsberg concurring in the judgment and Justice Kagan not participating) had plenty to say about the future of habeas corpus review. 

1)  More habeas review is not always better.  

“The writ of habeas corpus stands as a safeguard against imprisonment of those held in violation of the law. Judges must be vigilant and independent in reviewing petitions for the writ, a commitment that entails substantial judicial resources. Those resources are diminished and misspent, however, and confidence in the writ and the law it vindicates undermined, if there is judicial disregard for the sound and established principles that inform its proper issuance.”

As this ringing introduction by Justice Kennedy recognizes, failure to exercise prudence in using the writ is corrosive and harmful.  The resources of the federal courts are not infinite - time and money spent on reviewing thousands and thousands of meritless state prisoner petitions means less for other important cases and more meaningful efforts to safeguard constitutional rights in the criminal process. Perpetuating this unnecessary and wasteful litigation is not only a misuse of the writ, it is a poor choice for reformers who seek to shore up gaps in state criminal justice, and obscures what the writ is all about.

2)   Habeas is for serious structural deficiencies, it is NOT another appeal. 

The majority in Richter wrote: “Section 2254(d) reflects the view that habeas corpus is a “guard against extreme malfunctions in the state criminal justice systems,” not a substitute for ordinary error correction through appeal.  Jackson v. Virginia, 443 U. S. 307, 332, n. 5 (1979) (Stevens, J., concurring in judgment).”

It went on to characterize “the basic structure of federal habeas jurisdiction,” as “designed to confirm that state courts are the principal forum for asserting constitutional challenges to state convictions.” 

In the 1960s, there certainly were “extreme malfunctions in the state criminal justice systems.” Many states had no post-conviction remedies for violations of the newly announced constitutional rules, and appellate review was often inaccessible. Habeas, then, was for many prisoners, the ONLY appeal.  As Justice Brennan wrote in 1961, if state post-conviction remedies “were the rule and not the exception, redress by state judiciaries of violations of the Federal Constitution would ordinarily result, and intervention by any federal court, including the United States Supreme Court would become unnecessary.”   7 Utah L. Rev at 441. 

The expansion of habeas review of state criminal cases in the 1950s and 60s allowed the writ to perform its structural role – protecting liberty in times of upheaval while prompting the development of alternative review mechanisms to ensure that detention complies with federal law.  

3) State courts ignore federal habeas in non-capital cases

The Court in Richter held that a summary denial by a trial court is a decision on the merits that deserves deference under 2254(d), not de novo review. It was not worried that this would change the way States resolve these cases, reasoning that the choice of review standard won’t make a whit of difference to state courts in deciding how to write their opinions:  ”Opinion-writing practices in state courts are influenced by considerations other than avoiding scrutiny by collateral attack in federal court.”  

The Court is spot-on, and we’d take this further:   Not only “opinion-writing practices” but also the opinions themselves cannot possibly turn on the prospect of “scrutiny by collateral attack in federal court.” The remote chance of reversal of a noncapital conviction or sentence by a federal habeas court is too small to make any sort of difference to state courts and officials – most prisoners will never file a federal petition, and almost all of those that do will lose.  If federal law will be enforced and or expanded and developed in state criminal cases, that enforcement will come through the state courts’ own enforcement , or, through Supreme Court appellate supervision of state direct appeal and post-conviction decisions.

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