Sunday, April 17, 2011
Today, the New York Times carried an op-ed by Joseph Hoffman and Nancy King, forcefully advancing their case for curtailing federal habeas. To quote the op-ed: "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." This position is fully defended in their book, Habeas for the Twenty-First Century, now available from the University of Chicago Press. The King and Hoffman proposal is forcefully challenged by Blume et al., In defense of Non-Capital Habeas: A Response to Hoffman and King, 96 Cornell L. Rev. 435 (2011). Nancy sent me (Dripps) a notice about the op-ed, and this exchange followed, with her answers to my questions in CAPS.
(1) Would you have the same view of noncapital federal habeas for state prisoners if Justice Stevens had won the day in Williams v. Taylor? Statutory repeal of the noncapital habeas jurisdiction would preclude some future SCOTUS majority from returning to a de novo standard of review of legal questions (a view I find hard to avoid under Article III--really, Congress directing a federal court, rather than not hear a case, to affirm a judgment the federal bench regards unconstitutional). And if there were de novo review on federal habeas of the federal question, would that make the litigation worthwhile?
NO, EVEN WITH A MORE ROBUST DE NOVO REVIEW STANDARD, HABEAS REVIEW OF NONCAPITAL CASES IS LARGELY INACCESSIBLE AND FUTILE. THE STANDARD ITSELF MAKES LITTLE DIFFERENCE - THE GRANT NUMBERS WERE MINISCULE BEFORE AEDPA.
(2) And do you really think a federal flying squad for death cases--in my view, the best way to abolish the death penalty in this country--could get out of committee? It would force grandstanding public agents in such places as Harris and Dade counties to pay for their sanguinary self-indulgence--and that would be that. Surely the relevant politicians can see that, working as they are to cut spending except for wars and entitlement programs.
FEDERAL FLYING SQUAD, INTERESTING PHRASE - BUT THAT IS NOT WHAT WE PROPOSE. WE JUST ASK CONGRESS TO CUT BACK ON NON-CAP (WHERE HABEAS REVIEW HAS NO DETERRENT/CORRECTION EFFECT) AND LEAVE REVIEW OF CAP CASES BASICALLY AS IS. THERE ARE SOME OTHER SPECIFIC PROPOSALS RE: CAP CASES IN THE BOOK (see www.habeasbook.com ). BUT I AGREE THAT COST HAS BEEN AND WILL BE ONE OF THE BATTLEGROUNDS FOR DEATH PENALTY PROPONENTS AND OPPONENTS.
(3) Prison conditions cases?
GLAD YOU ASKED! WE ARGUE THAT HABEAS LITIGATION OVER DISCIPLINARY HEARINGS AND PAROLE DENIALS AND SUCH SHOULD BE MOVED OUT OF HABEAS TO A TAILORED ALTERNATIVE STATUTORY SCHEME (SEE CHAPTER 9 OF THE BOOK, AND THE ARTICLE IN DUKE LAW JOURNAL THAT I WROTE WITH SUZANNA SHERRY), AT LEAST WHERE FEDERAL REVIEW IS SUPPLEMENTING STATE JUDICIAL REVIEW OF THESE DECISIONS. OTHER THAN THAT, WE ARE NOT ADDRESSING 1983 OR PRISON CONDITION CASES. HABEAS AND 1983 CASES TEND TO BURDEN THE SAME DISTRICTS, AS YOUR QUESTION SUGGESTS, BUT THE PLRA HAS ALREADY DRAMATICALLY REDUCED THE NUMBER OF 1983 CASES FILED.
(4) I gave a conference paper at UNC making some preliminary points about the enervation of habeas in light of Crawford, one recent salient SCOTUS decision favorable to the defense. Still working up the numbers, but why would you folks assume that the state courts are kosher, other than that the federal circuits are now right of SCOTUS?
SOUNDS INTERESTING, I'D LOVE TO SEE THE PAPER. OUR POINT IS THAT THE STATE COURTS ARE NOT RESISTING FEDERAL LAW ANYMORE BECAUSE IT IS NOT THEIR OWN. NOW THEY DISAGREE ABOUT ITS SCOPE FOR THE SAME REASONS AND IN THE SAME WAY THAT THE FEDERAL CIRCUITS DO. WHEN THE LOWER COURTS CONTINUALLY GET IT WRONG, THE SUPREME COURT CAN, AND DOES, CORRECT THEM. IF WE EVER SEE ANOTHER FEDERALISM REVOLT, THE NATION HAS THE SAME TOOLS AT ITS DISPOSAL THAT IT DID IN THE 1960S.