Nancy King and colleague Joseph Hoffmann propose reforms in use of habeas law in new book

Mar 29, 2011

In a groundbreaking new book, Habeas for the 21st Century: Uses, Abuses, and the Future of the Great Writ (University of Chicago Press), Vanderbilt criminal law expert Nancy J. King and coauthor Joseph L. Hoffmann of Indiana University Maurer School of Law offer a new perspective on the ancient writ of habeas corpus.

“The ‘Great Writ’ is one of our most important protections against tyranny,” said King, who is Vanderbilt’s Lee S. and Charles A. Speir Professor of Law. “In crisis after crisis throughout U.S. history, from internment camps for Japanese citizens during World War II to detention centers for Cuban immigrants in the 1980s, habeas has allowed judges to free individuals confined illegally by government officials.” Based on a study of habeas cases that King led and completed in 2007, the authors argue that habeas has strayed in recent decades from its crucial historic role and become a tool used by thousands of state prisoners to bring meritless cases. “These cases have the effect of squandering the scarce resources of the federal courts on thousands of meaningless habeas petitions, almost none of which succeed,” King said. “They also undermine the true purpose of habeas, which is to prevent the government from illegally confining individuals in response to a crisis.”

King Habeas Book CoverIn their book, King and Hoffmann advance recommendations for habeas reform that are grounded in the recent study of thousands of cases King undertook with colleagues Fred Cheesman and Brian Ostrom of the National Center for State Courts. The study examined the impact of the Antiterrorism and Effective Death Penalty Act (AEDPA) of 1996, which was passed specifically to reduce the volume and burden of processing habeas petitions filed by convicted prisoners. In 2005, King discovered that no one had examined habeas litigation since AEDPA’s passage to determine if the legislation was achieving its stated goals. She secured funding from the National Institute of Justice and from Vanderbilt’s Branstetter Litigation & Dispute Resolution Program and enlisted “a small army of well-trained Vanderbilt Law students” to code a random sample of more than 2,300 non-capital cases filed in U.S. District Courts in 2003 and 2004, and another sample of more than 350 capital cases brought between 2000 and 2002. The study’s results were detailed a final report to the National Institute of Justice in 2007.

When King examined the results, her biggest surprise was learning that federal courts had granted habeas relief in only seven of the noncapital cases that she and her research team examined. “Our most striking finding was how few of these petitions are actually granted,” she said. “State prisoners file between 16,000 and 18,000 habeas cases every year, and only a miniscule fraction of those cases succeed. The rest require the district courts to churn through procedural issue after procedural issue before the writ of habeas corpus is eventually denied. That represents an incredibly wasteful use of the courts’ time.” In addition, King and her team also found that, since AEDPA’s implementation, habeas cases were actually taking longer to process and the number of claims had increased. “If the cases are taking longer and there are more claims, that means AEDPA is not working as intended, especially if part of the intent was to reduce processing time,” she said.

According to King, the fact that state prisoner habeas cases are so numerous and so rarely succeed has undermined respect for the ‘Great Writ’ itself. “Many policymakers, judges and average citizens view habeas cases as a waste of time, a costly overlay by the federal courts on top of what is otherwise functioning just fine,” she said. “That attitude translates into disrespect for habeas in other areas where it still plays a crucial role in limited abuse of power, like the terrorism crisis of the past decade.”

In their book, King and Hoffmann first explore the historical basis for habeas law to illuminate its true purpose. “When the Supreme Court in the 1950s and ‘60s announced new federal law that state courts had to follow in criminal cases, state courts had no mechanism for enforcing those rules, and state judges were not exactly comfortable or happy applying federal law,” King said. “Habeas was a way to ensure that states respected an individual’s federal constitutional rights. But states have now long since absorbed the enormous responsibility placed upon them, and it’s time to move on.”

King and Hoffmann contend that the writ of habeas corpus is a necessary and effective mechanism for responding to a temporary crisis that creates a need for detention, like those posed by the “Red Scare” when suspected communists and anarchists were rounded up for deportation, the arrival of “Marielitos” and other Cuban refugees who were temporarily detained during the 1980s, and the more recent terrorists attacks. “Whenever the federal government has to figure out how to deal with a large number of detainees, habeas protects the rule of law and the rights of those detainees while federal agencies and Congress came up with a new mechanism to address the specific needs of those detainees,” King said. “Until Congress passed the Immigration Act in the 1950s, habeas was the only relief available to federal immigration detainees awaiting deportation, for example. Today, habeas is available to ensure that suspected terrorists are detained lawfully while Congress works out a longer term solution. Habeas is effective when it’s used to restore balance, to manage a transition. But when alternative judicial remedies have been established and balance is restored, habeas shouldn’t be used as a routine mechanism for review.”

As one important step to maintain the integrity of federal habeas for crisis situations where it serves an essential purpose, King and Hoffmann propose that Congress reduce access to habeas for state prisoners to only two categories – those sentenced to death and those with strong new evidence that they are innocent of the crimes for which they were convicted. Two chapters in the book address death penalty cases and use findings from the study to argue why habeas is uniquely valuable in these cases.

King and Hoffmann also argue in their book that Congress should abandon the parallel treatment of federal and state criminal cases, and that the review of federal cases should be expanded, not contracted. They propose that Congress consider creating an alternative remedy – other than habeas – for the very different cases in which prisoners do not attack their convictions or sentences but instead allege that they have been denied their rights to due process by corrections and paroling authorities.

Click here for a video of the discussion of the book with Professor Barry Friedman and Judge William H. Pryor, Jr., of the U.S. Court of Appeals for the Eleventh Circuit, recorded April 21st at Vanderbilt Law School. 

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