Conversations


Court drops a bombshell in Martinez v. Ryan

Tuesday, March 20, 2012 No Comments by Nancy King

In a 7:2 decision today, the Court in Martinez v. Ryan held that ineffective assistance of counsel during state post conviction proceedings can be cause for excusing procedural default of a claim of ineffective assistance of counsel at trial.

The Court originally agreed to consider whether a prisoner who claims that he was denied the effective assistance of counsel at trial has a constitutional right to an effective attorney in “collateral” (post-appeal) proceedings in state court in
order to raise that claim for the first time.  But today it didn’t answer that question.   Rather than addressing the constitutional question about the scope of the right to counsel, it answered an “equitable” question about the scope of federal habeas corpus review. Read more »

Debating cause and prejudice in Maples

Thursday, October 6, 2011 No Comments by Nancy King

Presently over on SCOTUSblog there is a conversation about some of the issues raised in the Maples case argued yesterday in the Supreme Court.  Unlike many commentators, I am not confident the Court will be ruling in the petitioner’s favor in Maples.  Even if a majority of justices does decide to grant some sort of relief in Maples, a remand for instance, the issue there is not nearly as explosive as the one raised in Martinez. 

One observation about Maples - in the furor over sending a petitioner to his death before a federal court reviews the merits of his claim, it is easy to overlook the ripple effects of  any new definition of  ”cause.”  Federal courts routinely apply the Court’s “cause and prejudice” test not only in habeas cases - capital and non capital alike– but also in 2255 cases, and when evaluating whether to reach the merits of a claim “waived” under Federal Rule of Criminal Procedure 12.  State courts also adopt the Court’s definition of “cause” as a standard for reviewing unraised claims in their own courts.  Initially, the “cause and prejudice” test could have been based in concerns about “comity” and federalism, but it has expanded well beyond that context.

Video of panel discussion: Barry Friedman, Judge William Pryor, Jr., discuss book

Tuesday, May 3, 2011 Comments Off by Nancy King

A link to a video recording of a panel discussion of the book  is now available.  On the video, Professor King summarizes the book (10 m), followed by critique from Professor Barry Friedman (about 20 m) and Hon. William Pryor, Jr. (about 20 m) , and brief comments from Professor Hoffmann.

Barry Friedman is Vice Dean and  Jacob D. Fuchsberg Professor of Law at NYU School of Law, a leading academic authority on constitutional theory and the federal courts.   Hon. William Pryor, Jr., is a judge on the United States Court of Appeals for the Eleventh Circuit.  Previously he was the Attorney General for the State of Alabama, from 1997 – 2004.

The event was held at the Vanderbilt Law School  on April 21, 2011.

At Huffingtonpost, more discussion

Tuesday, April 26, 2011 No Comments by Nancy King

Andrea Lyon’s post on our Op Ed, along with my reply, at huffingtonpost.com today, is here.

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

Sunday, April 24, 2011 Comments Off by Nancy King

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

Saturday, April 23, 2011 Comments Off by Nancy King

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?

Wednesday, April 20, 2011 Comments Off by Joseph Hoffmann

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?

Wednesday, April 20, 2011 Comments Off by Joseph Hoffmann

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?

Wednesday, April 20, 2011 Comments Off by Joseph Hoffmann

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?

Wednesday, April 20, 2011 1 Comment by Joseph Hoffmann

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 »

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