No Habe For You (Update)

No doubt about it, habeas corpus is a burden.  Defendants in prison file a ton of them, especially when television goes into summer reruns, in the hope of winning freedom, better food or a decent haircut.  You name the problem and there’s a habe for it.  A real burden.

Two lawprofs, Joseph Hoffman from Indiana and Nancy King from Vanderbilt, write about it in the New York Times :



But habeas is also subject to abuse. State prisoners convicted of non-capital offenses file more than 17,000 habeas corpus petitions in federal court each year. Each petition challenges the constitutionality of some aspect of the prisoner’s conviction or sentence, even though that conviction and sentence already have been affirmed by at least one state court, and sometimes several.


Only a tiny fraction of these habeas petitioners — estimated at less than four-tenths of one percent — obtain any kind of relief, which is usually a new trial, sentencing or appeal, after which they may be sent back to prison.


At such a low percentage of 2254* petitioners (as lawyers call them, after 28 USC §2254), the cost/benefit ratio is absolutely dreadful.


Each petition consumes the scarce resources of both the federal and state governments. Indeed, the never-ending stream of futile petitions suggests that habeas corpus is a wasteful nuisance. By almost any measure, the use, and abuse, of habeas by convicted state prisoners is a failure, one that could corrode one of the most revered pillars of our legal system.  

What I assume is intended by “one of  the most revered pillars of our legal system” is the finality of conviction. which allows us to wipe off our hands as we walk from the grave feeling pretty good about ourselves.

The lawprofs contend that habe, the great writ, was needed back when state courts ignored the federal constitution, but now that most state judges acknowledge that it applies to them whether they like it or not, habeas petitions are just mulligans for affirmed appeals.


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.

Imagine all the time that will free up for federal judges, who can not ponder and deliberate about their own federal cases, allowing them to reach Solomonic decisions where before they were constrained to knee-jerk denials.  But it’s not just for the benefit of the judges and their overburdened staff that the lawprofs denounce the nasty writ.  Do it for the children prisoners, they cry.


Worse, the misuse of habeas as one more round of appeal in routine state criminal cases will eventually cheapen habeas’s currency. If habeas is chiefly seen as a way for convicted state prisoners to get federal courts to review countless meritless claims, this will diminish public respect for the writ and leave it vulnerable to broader attacks.

Curtail the writ or it will be vulnerable to attack.  It makes sense if you don’t think about it.  And so, the lawprofs offer their solution.


EXCEPT in capital cases and in cases in which prisoners can produce persuasive evidence of their innocence, the need for finality must trump our pursuit of perfection. If habeas review were truly costless we could review all criminal cases ad infinitum.  But,  in the real world, judicial review eventually must stop. 

That a couple of lawprofs see habes as our inadvertent “pursuit of perfection” is curious.  Most lawyers view them as last ditch effort to avoid outrageous imperfection, but then lawyers may inexplicably not hold the system in as high esteem.

Fiscal watchdog Ted Frank argues at  Point of Law that these scholars are giving away the store.

I would go further than Hoffman and King and restrict the writ to cases of actual innocence; while federal courts are more likely to grant habeas petitions in the capital context, it generally appears that they do so for purposes of protesting capital punishment rather than because capital cases are handled more constitutionally sloppily than run-of-the-mill felonies. If anything, the blizzard of habeas cases in the federal courts hurts the innocent, because it’s harder for their habeas petitions to stand out amongst the mass of frivolous cases.

And like the lawprofs, Ted gets there because of his deep concern for the downtrodden.

Money currently devoted to litigating these thousands of petitions would be better served upgrading the public-defender system.


This outpouring of concern for defendants is really quite overwhelming and endearing.  Who would have thought that the evisceration of the right to habeas corpus would be based on such deep, abiding concern for money the welfare of indigent criminal defendants?  I’m misty eyed.

Clearly, it wasn’t enough when Congress limited habeas petitions to a year after the completion of the state appellate process, still allowing the great unwashed to file at will no matter how frivolous their constitutional claims.  So what if DNA that proved innocence was unearthed 13 months later from the hole where the cops buried it.  Finality trumps perfection, which would make a great platitude to carve above courthouse doorways.

The glaring hole in this proposal, however, is not the obvious, that there’s no way to distinguish the meritorious habe from the frivolous until somebody actually ships it off to the court, someone takes a quick look at it and decides whether it gets filed in the square or round container. No, the glaring hole is that these bored defendant can still file their habeas petitions claiming actual innocence when all they really want is kosher food, still busting the courthouse budget.  It doesn’t solve this serious problem.

To that end, I offer a better solution: Attach a letter to each year, and only allow defendants to file petitions in the year that applies for the first letter of their last name.  I considered using their middle name, but since many poor defendants’ parents couldn’t afford a middle name for their children, this would terribly unfair and violate the equal protection of middle-nameless defendants. 

Not only would this immediately cut down drastically on the number of 2254 petitions filed annually, but it would also have the salutary effect of providing an incentive for defendants to seek sentences of at least 26 years and thereby provide them with a habeas filing window of opportunity.  Problem solved.

* Correction to my original post, which referred to §2255 rather than the correct §2254, which relates to federal habeas corpus proceedings for people in state rather than federal custody.  H/T  Strikelawyer for catching my mistake.

Update:  Some excellent  letters to the editor in reaction to the Op-Ed, including a particularly good one from my buddy, Kuby.



Do the math of mass incarceration: If “only” .4 percent of habeas petitions are granted, with 1.4 million prisoners in state custody, that would yield a wrongful conviction number of 5,600 persons. The low success rate for habeas petitioners is due to legislative changes made in 1996 in a misguided effort to restrict habeas corpus. For a state prisoner to prevail in federal court now, the claimant must show that the state court reviewing the claim was not only wrong, but also violated “clearly established” federal law as determined by the Supreme Court. This is a virtually impossible standard to meet and argues for expanding, not limiting, federal review.


Condemning so many to unconstitutional imprisonment is an incalculable human loss. Those who argue that this price must be paid are not the ones who pay it. 


RONALD L. KUBY


of course, nobody cares, unless you happen to be one of the 5,600 people wrongfully convicted.  And really, it’s not like they’re friends of our or anything, right?

2 comments on “No Habe For You (Update)

  1. Jonathan Edelstein

    Step 1: Rig the rules so almost nobody can win a habeas petition, even if he has been genuinely wronged by the state criminal justice system.

    Step 2: Characterize habeas as a waste of time because almost nobody wins.

    You knew this was coming.

    Want to really make habeas less of a drag on judicial resources? Get rid of Teague and the “clearly established Supreme Court precedent” rule, ease up on procedural defaults, and concentrate on whether the trial was fair rather than the procedural arcana of the AEDPA. You’d be amazed at how much faster these petitions could be resolved if the judges didn’t have to wade through a procedural morass before getting to the merits.

    Also, possibly, have some pre-screening process for pro se petitions to eliminate the obviously untimely, non-cognizable, unexhausted or waived claims.

  2. Jonathan Edelstein

    And “state judges no longer resist the idea that they are required to enforce federal constitutional rights in state criminal cases?” For real? In exactly which state — no, which planet — have Professors Hoffman and King litigated a criminal appeal lately?

    I suppose that, if you look at things a certain way, state judges are no more hostile to Federal rights than they are to all the others, but I don’t think that’s what the good professors had in mind.

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