Recently I ran across a couple of interesting items related to federal habeas corpus rights that may interest Grits readers. First, here are two academic articles I read this week debating the role of federal habeas petitions - this one (pdf) published last year arguing to abolish federal habeas review in most state cases, and this response (pdf) published more recently arguing that federal habeas review still has a role. (Via CrimProf blog.) I certainly agree with critics that habeas relief is regrettably unavailable for most defendants, that "We need a new federal approach that focuses on avoiding constitutional errors instead of trying to fix them after they have occurred," and also that ineffective assistance of counsel is probably "the most serious constitutional deficiency in state criminal justice today." What's more, I know from watching Texas cases that federal habeas petitions frequently fail to correct even egregious problems with state cases. So I can muster sympathy for the argument that the mechanism is so dysfunctional we might be better off without it.
That said, I don't find persuasive the argument that resources expended on processing habeas writs would significantly improve indigent representation if the money were shifted to that purpose. The cost of providing indigent defense on the front end is much greater and eliminating habeas review wouldn't make a dent in the problem. What's more, I don't consider improving indigent defense and providing post-conviction relief to be mutually exclusive. Most importantly, I agree with the respondents that framing the debate over habeas petitions in terms of civil-rights era reforms is short-sighted. After all, they argue:
even if racial discrimination were totally eliminated – something far in the future , in our estimation – we find it at least unwise to predicate judgments about the importance (or unimportance) of habeas on its prevalence. Habeas in Civil War times was not primarily beneficial for those facing racial discrimination; rather, it was those facing procedural issues raised by Reconstruction who most wanted habeas review. ... Times change, as the does the nature of governmental infringements on individual rights . If we can expect new issues to generate new need for habeas review from time to time, limiting it now because one form of governmental abuse is on the wane seems foolish indeed; it is hard to imagine that non-capital habeas could later be resurrected.I also tend to agree with the authors' argument that "The problem of too little success in non-capital habeas could be effectively addressed by modifying, rather than abandoning, the current scheme," removing time-consuming legal barriers that "prevent merits review of claims of constitutional error." So my own views correspond more directly with the second piece, but both articles are thought provoking and deserve to be read by anybody concerned with the subject of post-conviction writs.
Then there's this item from Change.org's Criminal Justice Blog describing habeas review of prisoners from Guantanamo Bay, pointing out that of the petitions processed so far by federal courts, 38 prisoners have been released and just 19 detentions were deemed justified. Of course, these are federal cases and thus aren't implicated by the debate over habeas in state cases, but it's interesting to see an instance where the habeas process is seemingly working as it should.
RELATED: Parsing post-conviction writs