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The Great Writ

As every schoolboy learns, the Framers didn't initially include in the Constitution many of the rights we presently take for granted.  It was only after doubts were raised as to how a stronger central government might impinge on such liberties that those freedoms were added through the Bill of Rights.  But certain rights were deemed so important that they were part of the original Constitution.  One of them was the right to a writ of habeas corpus.  Often termed "the Great Writ," and dating back to the Magna Carta, it offered a means of challenging the legality of one's imprisonment.  A single Federal judge can decide that a prisoner is being held unlawfully, and order his release.

A couple of law professors think it's time to pretty much get rid of it.  In an op-ed a couple weeks back in the New York Times, Professors Joseph L. Hoffman and Nancy J. King of Indiana University and Vanderbilt University, respectively, argued that habeas relief should be limited to capital cases and those in which the defendant can produce evidence of actual innocence.

Their argument is based largely on the ineffectiveness of habeas.  As one study of Federal habeas petitions filed between 1992 and 2007 showed,


except in capital cases, those inmates who do manage to obtain federal habeas review can expect to lose. Although federal judges are taking longer to resolve petitions, they ultimately reject almost all of them. . . . The grant rate for noncapital cases has dropped from 1% in the early 1990s to only 0.34% today. Only eight of the 2384 noncapital habeas filings the study examined resulted in a grant of habeas relief, and one of those eight grants was later reversed on appeal...

Hoffman and King draw two arguments from this:  first, that habeas is largely unnecessary to remedy state violations of federal constitutional rights, and secondly that "abuse" of the writ not only drains scarce judicial resources, but will eventually "corrode one of the most revered pillars of our legal system."

Their case would have more resonance if they addressed one of the major reasons for the futility of habeas relief:  the substantial restrictions imposed on its use and application by the Anti-Terrorism and Effective Death Penalty Act of 1996.  AEDPA imposed time limitations on seeking relief, eliminated for the most part the possibility of filing successive petitions, required Federal courts to defer to the state courts' factual determinations, and mandated that all Federal claims had to have been first "fairly presented" to the state courts -- you could have the clearest Crawford violation in the world, but if your lawyer argued it as a simple hearsay violation in the state appeals courts, you were out of luck.  And the biggest hurdle was that the Federal court couldn't simply come to a different legal determination than the state court had; the state court decision had to be accepted unless it "was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States."

The professors' belief that much of what habeas was supposed to do can now be remedied by state post-conviction remedies is also questionable.  At least here in Ohio, those remedies are illusory.  The time limitations for a post-conviction relief petition are even stricter than for Federal habeas -- 180 days after the transcript from the appeal has been filed (or would have been filed if there was no appeal) -- and res judicata prohibits consideration of any issue which was or could have been raised in an appeal.  There's no right to discovery, so establishing factual matters is difficult. 

The professors are on a bit more solid ground with their argument that habeas review of state court decisions isn't as necessary as it once was.  Back in the 60's, state courts were unfamiliar with, and often openly hostile to, the Warren Court's expansion of the "criminal" rights in areas like search and seizure and Miranda warnings; in many cases, a habeas action in Federal district court posed not just the best or last chance, but the only chance, of vindicating those rights.

Is that the situation now?  I've had judges who've experienced problems with Crawford, for example -- and not just at the trial level -- but that seems to have much more to do with the newness and complexity of the issue, rather than any hostility to it because it's a Federal issue.  And frankly, from the Federal decisions I read, I haven't noticed them being any more hospitable toward constitutional rights than state courts are.

So while I have some problems with how Hoffman and King arrive at their conclusion, it's harder to dispute the conclusion itself.  To be sure, there are ways to improve the efficacy of habeas, if "efficacy" is synonymous with "success rate."  One would be to assign attorneys to habeas cases.  The vast majority of non-capital habeas petitions are filed pro se, which might explain the fact that the success rate for petitions in capital cases, where a lawyer is involved, is 35 times greater.  Still, as long as the AEDPA is around, that's not going to have much effect:  since passage of AEDPA in 1996, the success rate of capital habeas petitions has fallen from around 40% to 12%.  And the AEDPA isn't going anywhere:  there's a better chance of Congress declaring May Transgender Month than of it expanding the ability of felons to get their convictions vacated.  Given all that, it's hard to take issue with the assertion that devoting substantial judicial resources, on both the Federal and state level (the state attorney-general's office defends these cases), so that seven out of nearly 2400 petitioners get relief isn't worth the effort.

I've mentioned before that, because of the high affirmance rate in criminal appeals, handling those cases is not for attorneys with self-esteem issue.  But a lawyer handling habeas cases better have a bullet-proof ego.


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