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Letters re: Hoffmann & King NYT Op Ed Cling to Misconceptions

The New York Times has just posted a number of letters to the editor to be published in tomorrow’s Sunday paper, responding to our Op Ed last weekend.

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.

More join the debate over reform

The debate about habeas review of state criminal judgments in noncapital cases continues, here and appealandhabeas.com and here at habeascorpusblog, here, and at whitecollarcrimprofblog, here.

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 »

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 »

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 »

Praise and Criticism from Thoughtful Readers

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

At PointofLaw.com, 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 Instapundit.com, 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

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