Important new book urges “more prudent use of habeas in state criminal cases”

I am pleased to be able to blog about an important new book that arrived in the mail this week and that today has the showcase of the New York Timesop-ed page.  The book, shown here, is titled “Habeas for the 21st Century: Uses, Abuses and the Future of the Great Writ” and is authored by Professors Joseph Hoffmann and Nancy King.  The book now has this supportive website and this new blogon habeas developments, and today’s New York Times includes this op-ed from the authors headlined “Justice, Too Much and Too Expensive.” The start of the op-ed effectively summarizes some of the key themes and proposals in the book:

Habeas corpus: it is, as Alexander Hamilton suggested, the “bulwark” of a Constitution.  A habeas petition gives a single federal judge the authority to decide if a prisoner is being held unlawfully and order his release.  At Guantánamo, habeas plays a crucial role: it provides the essential means by which the federal judiciary can ensure that innocent people are not mistakenly held, indefinitely, as enemy combatants. This is an example of habeas at its best.

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.

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.

We need a new approach — one that ensures a more prudent use of habeas in state criminal cases.

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.  Limiting habeas to these cases will help protect the long-term future of the writ in all of its varied forms.

I am a big fan of work by Professors Hoffmann and King, both in the arena of habeas review and concerning many other criminal justice topics.  And, based on what I already know about this book from reading the first chapter and prior habeas research by Professors Hoffmann and King, this book move quickly to the topic of my must-read list.

That all said, I am not a big fan of the policy prescriptions of Professors Hoffmann and King here.  I agree that modern habeas review is broken, but I propose a much different solution in this recently published article: Making the Framers’ Case, and a Modern Case, For Jury Involvement in Habeas Adjudication, 71 Ohio St. L.J. 887 (2010).  Here is a snippet from my introduction that speaks in part to the proposals of Professors Hoffmann and King:

Especially given the widely shared view that current federal habeas review of criminal convictions is deeply flawed — and with Professors Joseph Hoffmann and Nancy King contending that federal habeas is beyond salvaging and proposing total elimination of federal habeas review for most state prisoners — it is time for policymakers and commentators to consider a bold new approach.  This Essay suggests that such a new approach could and should incorporate a return to the structural and procedural vision of criminal procedure that the Framers of our Constitution had in mind at the Founding nearly 250 years ago, and it contends that, by incorporating a jury component in federal habeas proceedings, the modern collateral review process will serve as a more effective and robust check on the operations of modern criminal justice systems.