In our book, we argue that the primary purpose of habeas has never been case-specific error correction; instead, it’s about addressing the structural and institutional problems that produce such errors. And given its own structural limitations, habeas can’t serve as an effective mechanism for either correcting or preventing case-specific errors in criminal cases anyway. That’s why we propose a statutory change that would essentially mandate a more prudent approach. But some lower court judges continue to resist even the limitations that Congress and the Court have already imposed. Two recent en banc appellate decisions – one in the Ninth Circuit, and the other in the Eleventh Circuit – contain remarkably frank and robust discussions of this issue. Read more »
Author Archives: Joseph Hoffmann
Controversy over mitigation -3rd Circuit sets aside Mumia Abu-Jamal’s death sentence; Supreme Court reverses 6th Circuit in Bobby v. Mitts
Within the past week, decisions were rendered in two prominent death penalty habeas corpus cases involving challenges to jury instructions and verdict forms dealing with mitigating evidence and mitigating factors: the Mumia Abu-Jamal case in Pennsylvania and the Harry Mitts case in Ohio. The two decisions seem unlikely to settle the controversy over mitigation that has existed ever since the Supreme Court’s ruling Mills v. Maryland (1988). Read more »
Isn’t a better response making habeas review more meaningful?
We are receiving many emails about the NYT Op Ed and ideas in the book, we will reproduce some of the more frequently asked questions here as posts along with responses
COULDN’T WE SOLVE THE PROBLEMS OF HABEAS BY REMOVING EXISTING PROCEDURAL BARRIERS TO HABEAS RELIEF, AND ALSO BY PROVIDING DEFENSE LAWYERS TO ASSIST HABEAS PETITIONERS?
Two responses: (1) Any proposal to expand significantly the scope of habeas review, by removing existing barriers to habeas relief, or by providing government-funded defense lawyers to assist habeas petitioners, is a complete political non-starter. (2) More importantly, even if we somehow managed to accomplish some of those things, habeas would still not serve as an effective mechanism for case-by-case error correction or deterrence of state courts, because – as we explain fully in the book – the structural problems that make habeas relief unavailable to almost all prisoners would still exist, which means that the habeas grant rate would still remain tiny (as, indeed, it was even during the 1960’s when many of the procedural barriers to habeas relief didn’t exist). – JH
See also these exchanges with defender and with Don Dripps, here – NK
How can you assume state courts get it right?
We are receiving many emails about the NYT Op Ed and ideas in the book, we will reproduce some of the more frequently asked questions here as posts along with responses.
WHY DO YOU ASSUME THAT STATE JUDGES ARE ALWAYS DILIGENT IN PROTECTING THE FEDERAL CONSTITUTIONAL RIGHTS OF CRIMINAL DEFENDANTS?
We don’t. What we do know is that (1) every state today provides state judicial review procedures (i.e., appeal and post-conviction review) that are generally adequate to allow for litigation of federal constitutional claims, and (2) state judges today generally do not resist or refuse the application of federal constitutional law to state criminal cases simply because that law is federal law rather than state law. These are the two specific problems that Justice Brennan explicitly identified in his 1961 Utah speech, and they are the problems that prompted the Supreme Court (led by Justice Brennan) to expand the scope of habeas review of state criminal cases in 1963, as we explain in the book. The expansion of habeas in the 1960’s helped to solve these structural and institutional problems – even though non-capital habeas grant rates were never very high – by sending a message to state legislatures about the need to improve state judicial review procedures, and by also sending a message to state courts about the supremacy of federal law over state law. Read more »
Isn’t cost-benefit analysis dangerous and inappropriate?
We are receiving many emails about the NYT Op Ed and ideas in the book, we will reproduce some of the more frequently asked questions here as posts along with responses.
WOULDN’T THE SAME COST-BENEFIT ANALYSIS ALSO SUPPORT THE ELIMINATION OF CRIMINAL TRIALS? AFTER ALL, THE “SUCCESS RATE” OF CRIMINAL TRIALS IS ALSO VERY LOW – MOST TRIALS END IN CONVICTIONS.
You’re right to think that there should be more to this than just cost-benefit analysis, or numbers-driven logic. The fundamental values of our society, as expressed through the judiciary, must always define the minimum level of review that should be provided to every criminal defendant before they are subject to being fined, sent to prison, or executed for a crime. That’s a big part of what “due process” means. Read more »
What of the petitions that succeed now?
We are receiving many emails about the NYT Op Ed and ideas in the book, we will reproduce some of the more frequently asked questions here as posts along with responses.
WHAT ABOUT THE SMALL NUMBER OF NON-CAPITAL HABEAS PETITIONERS WHO CURRENTLY MANAGE TO OBTAIN RELIEF EACH YEAR? WHAT HAPPENS TO THEM, UNDER YOUR PROPOSAL?
Any non-capital petitioners who can show persuasive new evidence of actual innocence will be able to pursue habeas review as usual. In the book, we explain that we would also allow habeas review as usual for any non-capital petitioners who assert a claim based on “new law” that the Supreme Court has held to apply retroactively in habeas. But these are two very narrow categories, and for all other non-capital petitioners, no habeas review would be allowed.
This is a loss. But no matter where we draw the line, and decide that no further judicial review will be provided, there would be such a loss. Read more »
Another Dead End for Troy Anthony Davis?
On March 28, 2011, the U.S. Supreme Court rejected three separate requests for further legal review of the death penalty case of Troy Anthony Davis. This may mark the end of the road for Davis, whose so-called “original writ” habeas corpus petition in the Court caused quite a legal stir a couple of years ago. Read more »
Skinner v. Switzer – Much Ado About (Next to) Nothing?
Henry Skinner was convicted and sentenced to death by a Texas jury in 1995 for murdering his girlfriend and her two sons at a house they shared with Skinner. Skinner admitted that he was present when the murders occurred, but claimed that he was drunk and high on codeine, and could not have been the killer. Instead, Skinner claimed, the real killer was the girlfriend’s uncle, an ex-con with a history of physical and sexual abuse.
After being sent to death row, Skinner sought to have additional DNA tests performed on previously untested biological evidence collected from the crime scene, hoping to prove his innocence. Requests made under Texas state law in 2001 and 2007 were denied. Skinner then filed a federal civil rights lawsuit under 42 U. S. C. §1983, asking the federal courts to find Texas’ denial of his request for additional DNA tests to violate his constitutional right to due process. The federal district court dismissed the lawsuit on the ground that habeas corpus, and not §1983, was the only proper way to raise such a claim of access to DNA tests that might overturn a criminal conviction; the Fifth Circuit affirmed.
On March 7, 2010, in Skinner v. Switzer, the U.S. Supreme Court handed Hank Skinner a legal victory. It’s not obvious that the win will prove to be worth very much, however, because the Court also made perfectly clear that – even though Skinner will now be allowed to pursue his §1983 lawsuit in the lower federal courts – there’s very little chance that he will prevail in the end. Read more »
Habeas corpus must be preserved for crises, not wasted on routine cases
In a groundbreaking new book, Habeas for the 21st Century: Uses, Abuses, and the Future of the Great Writ (University of Chicago Press), Indiana University Maurer School of Law Professor Joseph L. Hoffmann and co-author Nancy J. King of Vanderbilt University Law School argue that habeas corpus in the United States is being seriously misused and needs to be reformed.
“The main problem today is that the ‘Great Writ’ of habeas corpus — one of our most important and cherished protections against abuse of government power — is being used primarily for the day-to-day review of routine state criminal cases,” said Hoffmann. “This is a tremendous waste of scarce resources, and even worse, it undermines public respect for habeas and thereby threatens its future.” Read more »
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