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Habeas Corpus and the Exclusionary Rule

From the Answers to Questions Practically No One Is Asking File ... Did a statute enacted almost 20 years ago abrogate a Supreme Court decision rendered almost 40 years ago with hardly anyone noticing, even though this involves a very heavily litigated area of law?  Nope, even the Ninth Circuit won't buy that.
In 1976, the Supreme Court decided in Stone v. Powell that if a criminal defendant's claim that evidence should have been suppressed under the Fourth Amendment exclusionary rule had been fully and fairly litigated in the state courts, that decision would not be reconsidered in federal court on habeas corpus.  For a time, Stone gave us hope that the Court would broaden its principle to recognize that some kinds of claims have far more to do with the basic justice of the case and the reliability of the verdict than others, and therefore different degrees of scrutiny are in order.  Alas, it was not to be.

The line between what can be considered on habeas corpus and what cannot has varied along the course of our history.  Originally, it was jurisdictional questions only, with jurisdiction narrowly defined.  That meant habeas corpus was virtually never available as a means of postconviction review.  In the second half of the nineteenth century into the early twentieth, the concept of what was "jurisdictional" for this purpose steadily widened. 

In the mid-twentieth century, the Supreme Court dropped the "jurisdictional" pretense and said that state cases could be collaterally attacked on federal habeas for constitutional violations.  At the time, all of the constitutional rules that applied to state courts were fundamental, so drawing the line there made practical sense, even if the lineage of the rule was dubious.

That changed dramatically with the Warren Court's criminal procedure revolution.  Some of the rules made by the Warren Court did go to the heart of ensuring a fair trial and a reliable verdict, such as appointed counsel for all indigent defendants facing jail time.  At the other end of the spectrum was the Fourth Amendment exclusionary rule.  That rule intentionally blinds the court to reliable evidence and causes an unjust result in the criminal case in order to deter future search-and-seizure violations in other cases. 

The exclusionary rule is the most reviled of all the Warren Court's criminal procedure decisions, and rightly so.  Before Mapp v. Ohio, when the rule was applied in the federal courts and those states that had chosen to adopt it, it was denounced by such giants of the law as Benjamin Cardozo and John Henry Wigmore.  After Mapp, when people denounced the practice of letting criminals off on "technicalities," this was usually what they meant.  In popular culture, Dirty Harry's disgust with the judge who gleefully suppressed evidence and put the criminal back on the street spoke for most of us.

Stone v. Powell was a case of practical cost-benefit analysis.  The cost of the exclusionary rule is very high in causing an unjust result in the individual case and in weakening public support and respect for the judicial system.  Once state courts had internalized the rule and were applying it in clear cases, the cost of reexamining debatable cases on this ground in federal habeas exceeded the benefit.

Unfortunately, our hopes of extending Stone to the Warren Court's second-worst decision, Miranda v. Arizona, came up one vote short in Withrow v. Williams in 1993.

Three years later, Congress passed a major reform of habeas corpus law.  Congress decided not to separate constitutional claims into fundamental and nonfundamental ones with different standards, despite the efforts of yours truly.  See also Justice Stevens' dissent in Rose v. Lundy, 455 U.S., at 543-544.  Instead, Congress imposed a new limitation on granting relief in habeas corpus cases, the so-called "deference" standard of 28 U.S.C. §2254(d).

What did this new limitation do to previous limitations imposed through case law?  "Nothing" was the obvious, and correct, answer.  Some academics and defense lawyers tried to claim that the new limit was either a codification of Teague v. Lane or a replacement for it.  They got closer than they should have with that bogus argument, but the Supreme Court rejected it in Williams v. Taylor (2000).

What of Stone v. Powell?  In 19 years, I had never heard anyone claim that §2254(d) displaced Stone.  In seems, though, that two years after AEDPA a federal district court in West Virginia actually held that.  Surprisingly, there doesn't seem to be any Fourth Circuit opinion rejecting that decision.  I am quite sure that federal courts in the Fourth Circuit are not routinely considering exclusionary rule claims by state prisoners.  We would surely have heard about that by now.  Yet the case is there on the books, never formally disapproved.  In other courts, the proposition has been uniformly rejected the few times it has come up.

Today a panel of the Ninth Circuit says, in essence, "of course not" in Newman v. Wengler, No. 13-36185.  Congrats to LaMont Anderson and the Idaho Attorney General's Office.

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