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