Author Archives: Nancy King

Is there such a thing as too much justice?, NYT Op ed asks

In this NYT Op Ed,  based on ideas more fully developed in the book, we argue Congress should take action to reform habeas policy: [See Above the Law, here, selecting our NYT Op Ed as Quote of the Day]

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. 

Read more: NYT Op Ed

Q & A with defender

The following is an email conversation with a reader of our NYT Op Ed, posted with permission. We will continue to add posts that address questions raised by readers of the book or the NYT Op ed. 

 Dear Professors King and Hoffman,

 I read your recent op-ed article in the New York Times with interest. . . . Much of my work is by CJA appointment in the federal courts, both Wisconsin districts and the Seventh Circuit.   I am troubled by your characterization of 2254 review of state convictions in federal courts as “useless.” Read more »

Praise and Criticism from Thoughtful Readers

Over at Crime and Consequences, Kent Scheidegger comments on our NYT Op Ed, proposals: here

At, agreeing that “If anything, the blizzard of habeas cases in the federal courts hurts the innocent, because it’s harder for their habeas petitions to stand out amongst the mass of frivolous cases. Money currently devoted to litigating these thousands of petitions would be better served upgrading the public-defender system.”– here

Doug Berman’s post about the book and NYT Op Ed,at Sentencing Law and Policy: here

Q & A with Don Dripps at CrimProf Blog, here

Nita Farahany says “provocative” op ed “touched off a hailstorm across the country,” at Law and Biosciences Digest, here

 And on, here

Cornell Law professors John Blume, Sheri Johnson, and Keir Weyble take aim at our NYU article,  Rethinking the Federal Role in State Criminal Justice, with this response:  In Defense of Noncapital Habeas

Beyond Cullen v. Pinholster: When new evidence amounts to a “new claim”

The fact-intensive dispute in the recent decision in Cullen v. Pinholster over the application of Strickland to capital sentencing representation breaks little new ground.  The decision is consistent with the Court’s view that “‘[s]urmounting Strickland’s high bar is never an easy task.’” Richter.  The more interesting aspects of the decision involve its consequences for evidentiary hearings and innocence claims by 2254 petitioners.  Read more »

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 Read more »

Nancy King and Joseph Hoffmann propose reforms in use of habeas law in new book

In a groundbreaking new book, Habeas for the 21st Century: Uses, Abuses, and the Future of the Great Writ (University of Chicago Press), Vanderbilt criminal procedure expert Nancy J. King and coauthor Joseph L. Hoffmann of Indiana University Maurer School of Law offer a new perspective on the ancient writ of habeas corpus.

“The ‘Great Writ’ is one of our most important protections against tyranny,” said King, who is Vanderbilt’s Lee S. and Charles A. Speir Professor of Law. “In crisis after crisis throughout U.S. history, from internment camps for Japanese citizens during World War II to detention centers for Cuban immigrants in the 1980s, habeas has allowed judges to free individuals confined illegally by government officials.” Based on a study of habeas cases that King led and completed in 2007, the authors argue that habeas has strayed in recent decades from its crucial historic role and become a tool used by thousands of state prisoners to bring meritless cases. “These cases have the effect of squandering the scarce resources of the federal courts on thousands of meaningless habeas petitions, almost none of which succeed,” King said. “They also undermine the true purpose of habeas, which is to prevent the government from illegally confining individuals in response to a crisis.” Read more »

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