Most of the concerns expressed in the letters are based on myths about habeas review that don’t stand up to scrutiny. Federal habeas corpus is not functioning, and cannot function as a “system to redress wrongs” in individual state criminal cases. Habeas relief comes so rarely and arbitrarily that it simply doesn’t do what the writers seem to believe it is doing. It is comforting to hope that habeas review will correct and deter errors by state courts – but, as we have explained elsewhere on this blog, and more fully in the book, it is a false hope.
Even worse, clinging to the broken and futile system of habeas review that we currently have may actually hurt the cause of justice more than it helps. The endless piles of hopeless petitions siphon resources away from where they might actually do some good, and obscure the cases in which plausible claims of innocence really do deserve the full attention of the federal habeas courts. Our proposal would actually make it easier for state prisoners with proof of actual innocence to gain that judicial attention and obtain relief.
One of the letters to the editor, however, went even further and created a brand new fiction about habeas review of state criminal cases. That letter claimed that 0.4% of all state prisoners currently benefit from habeas, even though it was very clear from our Op Ed (as well as the 2007 Habeas Study that was hyperlinked twice in the Op Ed) that the grant rate of less than 0.4% measures the success rate of only those prisoners who actually file habeas petitions. The truth is, out of the millions of convicted state prisoners, the vast majority have no access to federal habeas corpus at all and never file a petition. About 17,000 petitions are filed each year, which means that — in the entire United States — only an estimated 60-70 prisoners each year manage to secure any relief in the district courts. Moreover, that relief often consists of nothing more than another chance to be retried, resentenced, or file another round of appeal. Hopefully most Times readers were able to “do the math” and realize how truly rare habeas relief is today.