Monday, October 18, 2010
For a truly excellent debate about federal habeas for state prisoners, compare Joseph L. Hoffman & Nancy J. King, Rethinking the Federal Role in State Criminal Justice, 84 N.Y.U. L. Rev. 791, 818-33 (2009) with John H. Blume, Sheri Lyn Johnson. & Keir M. Weyble, In Defense of Non-capital Habeas: A Response to Hoffman and King, available online here. I remain skeptical about federal habeas, for reasons that the formidable scholars on both sides of this debate largely agree on--habeas comes late and the states lack systemic incentives to comply with Brady and Strickland. I have been inclined to agree with Hoffman and King that the resources used at the back end on habeas would be much better spent on less disgraceful indigent defense up front. But I am less sure of this position than before reading the paper by Blume, Johnson and Webyle. I commend the two articles in the strongest terms to anyone who cares about federal habeas.