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Habeas and Actual Innocence

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There has long been widespread dissatisfaction with the waste of federal judges sifting through mountains of habeas petitions from clearly guilty criminals.  In his great 1953 concurrence in Brown v. Allen (actually a dissent on the main point), Justice Jackson compared searching for the meritorious petition to searching a haystack for a needle.

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.

2 Comments

Kent – Thanks for your thoughtful post and comments about our NY Times op-ed piece.

In your comments, you asked why we propose a blanket exception for capital cases. The short answer (explained in greater detail in the book – see www.habeasbook.com) is that we think this is one area of criminal justice where habeas review remains important today – and it’s not only because the habeas grant rate is substantial in capital cases.

Our thesis is that the core purpose of habeas is not, and never has been, case-by-case error correction. Instead, the primary purpose of habeas is to provide the federal judiciary with flexible power to intervene in situations – often resulting from social or political crises – where liberty is threatened by a serious conflict involving either the political branches of the federal government (e.g., Guantanamo) or the states (e.g., the abuses in state criminal justice during Reconstruction, and also during the Warren Court revolution in criminal procedure). Habeas provides a stop-gap remedy, and also serves as an incentive to create permanent judicial review measures – at which point, prudence dictates that habeas should recede into the background, until it is once again needed.

In other words, habeas is primarily about addressing structural or institutional problems. That’s how the Framers thought about it, and it’s also how habeas has most frequently been used throughout American history, as Chapters 1 and 2 of the book fully explain.

We think capital punishment presents such a situation today. The Supreme Court is still trying to figure out exactly how to regulate it, as a matter of federal law, which is why the Eighth Amendment rules that govern capital cases continue to be in flux. Capital cases today look a lot like non-capital cases looked in the late 1960’s, with state courts confused and frustrated by ever-changing federal law that they don’t fully understand and haven’t yet fully embraced. That’s why the 2007 Study found that most habeas grants in capital cases address capital sentencing errors, rather than the same kinds of guilt-phase issues raised in noncapital cases (see Chapter 8 of the book). Moreover, our society remains deeply divided over the death penalty, which might be seen as a social “crisis” warranting the intervention of habeas courts.

As for “actual innocence” claims, the case for habeas intervention is less strong, but we still think it’s justified, primarily because most states haven’t yet devised and implemented an effective method to handle such claims. The ongoing controversies over innocence as a stand-alone constitutional claim (e.g., Herrera and House v. Bell) and access to DNA testing to support an innocence claim (e.g., Osborne and Skinner) show that there’s still a structural problem that needs solving. But we think the structural problem is limited to the handling of new evidence of innocence; we don’t think habeas courts should revisit convictions based simply on a disagreement with the way the state courts evaluated the evidence presented at trial.

Looking forward to an ongoing conversation about these important matters!

The 4/17 9:48 comment above is by Joe Hoffman. For some reason the Google sign-in is not giving us commenter names or handles, but only a long string of characters.

I don't agree on the capital cases, but I will wait for the book to comment further.

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