CrimProf Blog

Editor: Kevin Cole
Univ. of San Diego School of Law

Friday, August 31, 2018

Kovarsky on State Postconviction Review

Lee Kovarsky (University of Maryland, Francis King Carey School of Law) has posted Structural Change in State Postconviction Review (93 Notre Dame Law Review 443 (2017)) on SSRN. Here is the abstract:
Sandwiched between a state criminal trial and a federal habeas corpus proceeding is a lesser-known phase of criminal process called “state postconviction review” (“State PCR”). Whereas trials and federal habeas process have been lavished with centuries of legal attention, State PCR is a younger phenomenon that has persisted in what one might call a state of malign neglect. There is no federal right to a state postconviction lawyer because there is no federal right to state postconviction process at all. Until recently, State PCR was a phase of criminal process that federal institutions (if not scholarship) virtually ignored. Without federal intervention, it languished as an underfunded afterthought.

State PCR is a backwater no longer. The major structural changes lurking beneath the surface of American criminal punishment continue to undermine the premise that a meaningful “day in court” takes place in a single proceeding.
Instead, a commitment to reliability increasingly entails effective collateral process, and the most potent doses of that process are available in state court. The growing need for postconviction review combines with restrictions on the federal habeas remedy to create hydraulic pressure on State PCR. Federal institutions have responded with “interventions” designed specifically to reinforce State PCR’s burgeoning enforcement portfolio. My objectives in this Article are to model the effect of structural change on state postconviction remedies, to make sense of and evaluate the responsive federal intervention, and by extension to understand the role that State PCR will play in modern criminal process.

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