In 1970, Judge Henry Friendly proposed that we filter habeas petitions by requiring a colorable claim of actual innocence before considering a petition. The proposal went nowhere in Congress. A plurality of the Supreme Court endorsed it for successive petitions in Kuhlmann v. Wilson, but even that limited rule was never accepted by a majority.
For tomorrow's NYT, law professors Joseph Hoffman of Indiana U. and Nancy King of Vanderbilt have this op-ed. They note the same problems as Jackson and Friendly and propose:
Congress should limit habeas review of state criminal cases to two categories in which it actually can do some serious good: capital cases and cases in which the prisoner can produce persuasive new evidence of his innocence. Limiting habeas to these cases will help protect the long-term future of the writ in all of its varied forms.For noncapital cases, this proposal goes further than Friendly, who would have required only a colorable claim. The reason for such a radical change in noncapital habeas is that the state courts are now receptive to federal claims and catching nearly all the clear errors.
But today state judges no longer resist the idea that they are required to enforce federal constitutional rights in state criminal cases. Now prisoners in every state can file both an appeal and a post-conviction petition in state court, where alleged violations of federal rights can be reviewed and, if necessary, corrected. Habeas has thus fulfilled its mission: it helped facilitate the move to a criminal justice system in which the supremacy of federal law is unchallenged.
As a result, we no longer need habeas review of routine state criminal cases. One reason the writ is so rarely granted in these cases is that state courts long ago took over the role of reviewing constitutional claims that federal habeas courts once performed.
Why a blanket exception for capital cases? Hoffman and King don't really say, but I gather their reason is that there is still a high grant rate in these cases, leading them to believe this is an area where federal habeas does "serious good."
In my experience, though, federal habeas review of the penalty phase of capital cases does far more harm than good. When the Ninth Circuit, especially, overturns a death sentence affirmed by the state courts, it is wrong far more often than it is right.
For noncapital cases, I would go back to Friendly's more modest proposal of a "colorable claim of innocence" filter. For capital cases, I suggest reviewing the guilt verdict in every case, plus any claim as to whether the defendant was eligible to be considered for the death penalty (retardation, etc.), but eliminate completely federal habeas review of the discretionary sentencing decision.
Judge Friendly noted that making proposals such as this exposes one to the same kind of scorn as one who would "cheerfully desecrate the Ark of the Covenant." We will see if Hoffman and King get that kind of response.
Update: Links to reaction to the article are collected here.