Rethinking the federal role in state criminal justice

New York University Law Review

Volumn 84, Issue 3, 2009, Pages 791-849

  Hoffmann, Joseph L ^a   King, Nancy J ^b  

^a INDIANA UNIVERSITY   (United States)

^b VANDERBILT UNIVERSITY LAW SCHOOL   (United States)

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EID: 68949135497     PISSN: 00287881     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (353)

1. NANCY J. KING, FRED L. CHEESMAN II & BRIAN J. OSTROM, FINAL TECHNICAL REPORT: HABEAS LITIGATION IN U.S. DISTRICT COURTS (2007) [hereinafter VANDERBILT-NCSC STUDY], available at http://www.ncjrs.gov/pdffilesl/nij/grants/ 219559.pdf. The study was funded by Vanderbilt University Law School and the National Institute of Justice.
2. Of the approximately 1.1 million people convicted and sentenced for felonies in state court in 2004, only 115 were sentenced to death. Matthew R. Duróse & Patrick A. Langan, Felony Sentences in State Courts, 2004, BUREAU OF JUST. STAT. BULL. (U.S. Dep't of Justice, Washington, D.C.), July 2007, at 2, 3 [hereinafter Duróse & Langan 2004], available at http://www.ojp.usdoj.gov/ bjs/pub/pdf/fssc04.pdf.
3. See Press Release, Mich. Coal, for Justice, Landmark Lawsuit Seeks Repairs to Michigan Justice System (Feb. 22, 2007), available at http://www.micoalitionforjustice.org/pressrelease (describing lawsuit seeking to compel state to provide representation consistent with national standards and constitutional norms in three counties where public defenders are crippled by underfunding and overwhelming caseloads);
4. Alan Maimón, Officials Clash over Legal Aid Resources, LAS VEGAS REV.-J., Dec. 15, 2007, at Bl (describing Nevada Supreme Court hearing to discuss proposals of indigent defense commission, based on eight-month study concluding that public defender systems in most of Nevada are in crisis);
5. Alfonso A. Castillo, Judge Raps Public Defender System, NEWSDAY, Mar. 27, 2007, at A19 (reporting speech by New York's chief jurist Judith Kaye urging adoption of recommendation by state-level commission (Kaye Commission) for state takeover of indigent defense, which Commission deemed in crisis in New York state);
6. Joel Stashenko, Plan To Reform Indigent Defense Stalls In Albany, N.Y. L.J., June 10, 2008, at 1 (indicating that New York has yet to respond to crisis);
7. Nolan Clay & Randy Ellis, National Panel Faults Oklahoma County System, OKLAHOMAN (Oklahoma City), Apr. 27, 2008, at 1A (noting U.S. Department of Health and Human Services study finding that state assistant public defenders' caseloads exceeded 1000 at once, too many to meet ethical obligation to provide quality representation); In re Commitment of Stokes, No. 2004AP1555, 2007 WL 521243, at *23 (Wis. Ct. App. Feb. 21, 2007) (declaring facts in case to be "further indication of a systemic problem where the public defender's office is overburdened and where an experienced attorney becomes apparently incapable of handling the heavy caseload");
8. id. at *29 (Fine, J., concurring) (calling on Wisconsin Supreme Court to demand that legislature adequately fund defender services).
9. NAT'L ADVISORY COMM'N ON CRIMINAL JUSTICE STANDARDS AND GOALS, REPORT OF THE TASK FORCE ON COURTS 13.12, available at http://www.nlada.org/Defender/ Defender-Standards/Standards-For-The- Defense (stating that maximum caseload limits for felonies should not exceed 150; for misdemeanors, 400); see Erik Eckholm, Citing Workload, Public Lawyers Reject New Cases, N.Y. TIMES, Nov. 9, 2008, at Al (discussing declinations in Arizona, Florida, Kentucky, Maryland, Minnesota, Missouri, and Tennessee);
10. see also Gary Blankenship, Budget Woes Slow the Courts, FLA. BAR NEWS, Aug. 15, 2008, at 1 (reporting that staff cuts in Florida public defender's office forced it to refuse new felony noncapital cases);
11. Maridee Farnquist Edwards, Commentary: Overwhelming Caseload May Prompt Ethics Violations, Mo. LAW. WKLY., Oct. 13, 2008 (reporting that crisis in Missouri public defense prompted Missouri State Public Defender Commission to allow local offices to refuse certain cases);
12. Barbara L. Jones, Public Defense Special Report: Staff Cuts Will Lead to Delays, MINN. LAW., June 16, 2008, at 1,13, available at http://www.minnlawyer.com/article.cfm?recid=77958 (noting that after 2008 budget cuts, average full-time equivalent public defender caseload in Minnesota will be 812 files, double American Bar Association's standard of 400);
13. Julie Kay, Moonlighters Tackle Their Legal Debt, NAT'L L.J., Sept. 22, 2008, at 1 (reporting that in Florida, Georgia, Kentucky, and Minnesota, severe public defense budget cuts have forced public defender offices to "lay off lawyers, freeze salaries and even turn away defendants due to exhaustive caseloads");
14. Donna Leinwand, Public Defenders Refusing Cases; Offices Argue Cuts, Caseloads Threaten Rights of Defendants, USA TODAY, Sept. 11, 2008, at Al (reporting that "[p]ublic defenders are being hit so hard by budget cuts and growing caseloads that offices in several states are refusing to take on more cases because they say defendants' rights are being hurt" and citing examples in Florida, Kentucky, and Missouri);
15. Public Defender Rejects Some Cases; Budget Is Too Tight for Minor Crimes, the Pinellas-Pasco Office Says, ST. PETERSBURG TIMES, June 4, 2008, at B5 (reporting that budget cuts have forced St. Petersburg public defender to refuse defense in misdemeanor cases);
16. Georgia N. Vagenas, Indigem Defense: National Developments in 2007, 22 CRIM. JUST. 58 (2008) (noting lawsuit challenging constitutionality of New York public defense system and motion by Knox County, Tennessee defender's office to withdraw from all misdemeanor cases). For a collection of sources documenting deficiencies in defense representation, see infra notes 127-28.
17. Gideon v. Wainwright, 372 U.S. 335, 344 (1963) (incorporating Sixth Amendment right to counsel against states as "fundamental and essential to [a] fair trial[ ]").
18. Daniel J. Meltzer, Habeas Corpus Jurisdiction: The Limits of Models, 66 S. CAL. L. REV. 2507, 2526-27 (1993).
19. See infra notes 158, 185-87 and accompanying text (describing state adoption of postconviction remedies).
20. In California, for example, the state appellate courts reversed 6% of the nearly 5000 criminal appeals filed by defendants in FY 2006-2007. JUDICIAL COUNCIL OF CAL., 2008 COURT STATISTICS REPORT: STATEWIDE CASELOAD TRENDS 1997-1998 THROUOH 2006-2007, at 26 tbl.6 (2008), available at http://www.courtinfo.ca.gov/reference/ documents/csr2008. pdf. Texas courts of appeals reversed 193 criminal cases in whole or in part in 2007, compared to 3383 affirmed. OFFICE OF COURT ADMIN., Activity for the Fiscal Year Ended Aug. 31, 2007, in FY 2007 TEX. JUDICIAL SYS. ANN. REP., available at http:// www.courts.state.tx.us/pubs/AR2007/toc.htm (follow "Activity Detail" hyperlink under "Courts of Appeals," "Courts of Appeals Activity"). An analysis by the New York Bar Association of criminal appeals in Manhattan and the Bronx from 2002 to 2006 reportedly showed reversal rates ranging from 7% to 12%. John Ennis, Borough Bashing, JUDICIAL REPORTS, Jan. 16, 2008, http://www.judicialreports.com/2008/01/borough-bashing.php. For serious crimes such as murder and rape, some assert the reversal rate on appeal is as high as 14%. Brandon L. Garrett, Judging Innocence, 108 COLUM. L. REV. 55, 60-61 (2008). A recent study found a reversal rate of 48.1% for discretionary appeals in noncapital criminal cases accepted by state supreme courts. Theodore Eisenberg & Geoffrey P. Miller, Reversal, Dissent, and Variability in State Supreme Courts: The Centrality of Jurisdictional Source 22 tbl.4 (N.Y. Univ. Sch. of Law Pub. Law & Legal Theory Research Paper Series, Law & Econ. Research Paper Series, Paper No. 08-01, 2008), available at http://ssrn.com/ abstract=1080563.
21. See infra text accompanying notes 71-73 and note 128 and accompanying text (noting rarity and limited consequences of relief and collecting sources criticizing efficacy of Strickland v. Washington, 466 U.S. 668 (1984)).
22. Our proposal of a Federal Center is inspired by a recommendation made almost 30 years ago by the American Bar Association (ABA). See ABA STANDING COMM. ON LEGAL AID AND INDIGENT DEFENDANTS, AM. BAR ASS'N, REPORT WITH RECOMMENDATION TO THE HOUSE OF DELEGATES (1979) [hereinafter 1979 ABA RESOLUTION], available at http://www.abanet.org/legalservices/downloads/sclaid/121. pdf.
23. I. WAYNE R. LAFAVE, JEROLD H. ISRAEL, NANCY J. KING & ORIN S. KERR, CRIMINAL PROCEDURE § 2.4(e) (3d ed. 2007).
24. Palko v. Connecticut, 302 U.S. 319, 325 (1937).
25. Powell v. Alabama, 287 U.S. 45, 67 (1932) (quoting Hebert v. Louisiana, 272 U.S. 312, 316 (1926)).
26. These figures are based upon a Lexis search of the "U.S. Supreme Court Cases, Lawyers' Edition" source with the terms "decided & argued and date(geq (9/1/1959) and leq (8/31/1960))" (last performed Apr. 14, 2009). Cf. Gerhard Casper & Richard A. Posner, A Study of the Supreme Court's Caseload, 3 J. LEGAL STUD. 339, 353 (1974) (noting that only 22% of Court's caseload during 1959 term involved criminal cases).
27. Wolfe v. North Carolina, 364 U.S. 177 (1960) (denying jurisdiction to hear claim that state statute was used as tool of racial discrimination in violation of Supremacy Clause and Equal Protection Clause); Thompson v. Louisville, 362 U.S. 199 (1960) (holding that state convictions unsupported by evidence violated Due Process Clause);
28. Talley v. California, 362 U.S. 60 (1960) (holding that city ordinance under which petitioner had been convicted violated First Amendment); Smith v. California, 361 U.S. 147 (1959) (same).
29. One case, on certiorari from the direct appeal, involved a successful due process challenge based on the denial of counsel, Hudson v. North Carolina, 363 U.S. 697 (1960), while another case involving a similar claim was dismissed because the petitioner had been released from prison, thus mooting his federal habeas petition, Parker v. Ellis, 362 U.S. 574 (1960). A third case, also on certiorari from the direct appeal, involved a successful due process challenge based on the prosecutor's introduction of a coerced confession at trial. Blackburn v. Alabama, 361 U.S. 199 (1960). Last, in Ohio ex rel. Eaton v. Price, 364 U.S. 263 (1960) (per curiam), an evenly divided Court sustained the constitutionality of a local ordinance under which petitioner had been convicted against a Fourth Amendment challenge.
30. Brown v. Allen, 344 U.S. 443 (1953) (finding that there is no res judicata effect in habeas for prior state adjudications of federal constitutional claims).
31. See, e.g., id. at 465 (finding that petitioners' claims of jury discrimination and coerced confessions fell within Due Process and Equal Protection Clauses of Fourteenth Amendment).
32. In 1958, only 755 applications for habeas relief were filed in federal district courts; in 1962, only 1232. ADMIN. OFFICE OF THE U.S. COURTS, 1962 ANN. REP. OF THE DIRECTOR 130; ADMIN. OFFICE OF THE U.S. COURTS, 1959 ANN. REP. OF THE DIRECTOR 109. In 1960, the state prison population stood at 189,924. BUREAU OF THE CENSUS, STATISTICAL ABSTRACT OF THE UNITED STATES 160 tbl.209 (1962). Assuming that about twelve hundred habeas petitions were filed in 1960 (as there were in 1962), that is a rate of roughly one petition for every 166 prisoners, even though federal habeas was the only meaningful postconviction remedy for most prisoners because most states had not yet adopted their own effective postconviction procedures. By 2004, this ratio had more than doubled, to about one federal petition for every sixty-seven state prisoners. ADMIN. OFFICE OF THE U.S. COURTS, FEDERAL JUDICIAL CASELOAD STATISTICS 43 tbl.C-2 (2004), available at http://www.uscourts.gov/caseload2004/tables/ C02Mar04.pdf (reporting that 18,552 petitions were filed in federal district court in 2004);
33. PAIGE M. HARRISON & ALLEN J. BECK, U.S. DEP'T OF JUSTICE, PRISONERS IN 2004, at 1, 2 tbl.1 (2004), available at http:// www.ojp.usdoj.gov/bjs/ pub/pdf/p04.pdf (reporting state prison population of 1,244,311 in 2004).
34. Rates of habeas relief were also low during the late 1950s. See, e.g., Louis H. Pollak, Proposals to Curtail Federal Habeas Corpus for State Prisoners: Collateral Attack on the Great Writ, 66 YALE L.J. 50, 53 (1956) (concluding that on average federal courts order release of only one habeas petitioner per year);
35. Curtis R. Reitz, Federal Habeas Corpus: Postconviction Remedy for State Prisoners, 108 U. PA. L. REV. 461, 478 n.90, 479 (1960) (reporting that between 1949 and 1958 there were 6239 applications for habeas, but only 98 petitioners were successful in district courts from 1946 to 1957);
36. Walter V. Schaefer, Federalism and State Criminal Procedure, 70 HARV. L. REV. 1, 19 (1956) (reporting only five of 668 habeas applications-less than 1%-were granted in 1955).
37. U.S. CONST, art. I, § 8, cl. 3.
38. U.S. CONST, amends. XIII, XIV, XV. But see Civil Rights Cases, 109 U.S. 3 (1883) (emphasizing limits to Congress's enforcement powers under Fourteenth Amendment).
39. See Voting Rights Act of 1965, Pub. L. No. 89-110, 79 Stat. 437 (codified as amended at 42 U.S.C. § 1973 (2006)) (using federal power granted by Civil War Amendments);
40. Fair Housing Act of 1968, Pub. L. No. 90-284, 82 Stat. 81 (codified as amended at 42 U.S.C. §§ 3601-3619 (2006)) (using Commerce Clause power);
41. Civil Rights Act of 1964, Pub. L. No. 88-352, tit. VII, 78 Stat. 241, 251-66 (codified as amended at 42 U.S.C. § 2000e (2006)) (prohibiting discrimination in employment, using Commerce Clause power).
42. See CRAIG M. BRADLEY, THE FAILURE OF THE CRIMINAL PROCEDURE REVOLUTION 145-48 (1993) (arguing that Congress has power, under section 5 of Fourteenth Amendment, to draft federal code of criminal procedure applicable to state criminal cases).
43. See William J. Brennan, Jr., Federal Habeas Corpus and State Prisoners: An Exercise in Federalism, 7 UTAH L. REV. 423, 439-40 (1961) (predicting both need for Court to expand habeas as more new rights were incorporated through Due Process Clause and likelihood of state-court resistance to such new rights);
44. Michael J. Klarman, Rethinking the Civil Rights and Civil Liberties Revolutions, 82 VA. L. REV. 1, 62-65 (1996) (tracing relationship between concerns about unequal treatment of poor and Warren Court's criminal procedure revolution);
45. Carol S. Steiker, Second Thoughts About First Principles, 107 HARV. L. REV. 820, 841 (1994) (concluding Court's Fourth Amendment doctrine was "a response to the problems of racial discrimination that it and the nation as a whole were forced to confront forthrightly in the middle of this century").
46. See LAFAVE ET AL., supra note 11, § 2.5 (discussing rationale for adoption of selective incorporation in 1960s).
47. See BRADLEY, supra note 23, at 20 ("The Supreme Court thus ensured that its new rulings would be enforced by giving the lower federal courts a ready-made body of law to apply to the states, and by greatly expanding the jurisdiction of those courts to review state convictions by means of federal writs of habeas corpus." (footnote omitted));
48. Joseph L. Hoffmann, Substance and Procedure in Capital Cases: Why Federal Habeas Courts Should Review the Merits of Every Death Sentence, 78 TEX. L. REV. 1771, 1782 n.57 (2000) ("[I]n the 1960s, the lower federal courts were essentially deputized by the Warren Court, by means of the Court's dramatic expansion of federal habeas, to enforce often-unpopular new federal constitutional rules.");
49. cf. James S. Liebman, The Overproduction of Death, 100 COLUM. L. REV. 2030, 2035-36 (2000) (citing 1963 habeas cases of Fay v. Noia and Townsend v. Sain as two of five cases that "made especially salient to the Court the need not only for expanded procedural rights at state criminal trials but also to deputize the entire federal judiciary, on habeas, to assist the Court in enforcing those rights").
50. See, e.g., Gideon v. Wainwright, 372 U.S. 335 (1963) (right of indigent defendants to counsel at trial);
51. Mempa v. Rhay, 389 U.S. 128 (1967) (right to counsel at sentencing); Argersinger v. Hamlin, 407 U.S. 25 (1972) (right to counsel for indigent misdemeanor defendants sentenced to incarceration);
52. Evitts v. Lucey, 469 U.S. 387 (1985) (right to counsel on first appeal as of right, parallel to trial-level right established in Gideon).
53. See, e.g., Gerstein v. Pugh, 420 U.S. 103 (1975) (holding that magistrate determination of probable cause is required for extended detention of defendant after warrantless arrest).
54. See, e.g., Rogers v. Richmond, 365 U.S. 534 (1961) (establishing that confession will be barred as coerced where defendant's will was overborne, regardless of probability that statement is truthful);
55. Townsend v. Sain, 372 U.S. 293 (1963) (extending prohibition against coerced confessions to drug-induced confessions);
56. Jackson v. Denno, 378 U.S. 368 (1964) (finding procedure by which voluntariness of confession was determined by jury, not judge, unconstitutional);
57. Brewer v. Williams, 430 U.S. 387 (1977) (finding conversation during transport of defendant after arraignment amounted to interrogation, for which defendant had right to counsel);
58. see also Fay v. Noia, 372 U.S. 391 (1963) (determining that coerced confession claim not raised on appeal had not been waived and could be asserted in habeas petition where appeal by defendant would have entailed risk of capital sentence).
59. See, e.g., Malloy v. Hogan, 378 U.S. 1 (1964) (incorporating privilege against selfincrimination against states);
60. Estelle v. Smith, 451 U.S. 454 (1981) (holding that psychiatrist who examined defendant before trial without warning him that answers could be used against him in capital sentencing proceeding could not testify against him at such proceeding);
61. Berkemer v. McCarty, 468 U.S. 420 (1984) (declaring Miranda applicable to minor offenses).
62. See, e.g., Irvin v. Dowd, 366 U.S. 717 (1961) (holding that seating jurors biased by prejudicial publicity violated due process);
63. Sheppard v. Maxwell, 384 U.S. 333, 358-63 (1966) (finding due process violation where judge failed to control media interference with trial, resulting in "carnival" atmosphere);
64. Parker v. Gladden, 385 U.S. 363 (1966) (applying right to impartial jury to state proceedings);
65. see also Taylor v. Hayes, 418 U.S. 488 (1974) (holding that judge's appearance of bias during criminal trial violated due process); Turner v. Murray, 476 U.S. 28 (1986) (establishing right of capital defendants accused of interracial crime to question jurors about racial bias).
66. See, e.g., Specht v. Patterson, 386 U.S. 605 (1967) (holding that due process required hearing and opportunity to confront witnesses before defendant could be sentenced as sex offender).
67. See, e.g., Ashe v. Swenson, 397 U.S. 436 (1970) (interpreting protection from double jeopardy to include principle of collateral estoppel, barring retrial of fact rejected by earlier jury); Crist v. Bretz, 437 U.S. 28 (1978) (establishing that in jury trial jeopardy attaches when jury is sworn).
68. See, e.g., Paul M. Bator, Finality in Criminal Law and Federal Habeas Corpus for State Prisoners, 76 HARV. L. REV. 441, 521 (1963) ("The existence, notorious and oftexhibited, of grave inadequacies in the states' criminal procedures, both original and postconviction, makes the federal habeas corpus jurisdiction a present necessity.");
69. Barry Friedman, Habeas and Hubris, 45 VAND. L. REV. 797, 801 (1992) ("The criminal justice system of the early 1900s sanctioned racism, turned a blind eye upon physical and psychological torture of criminal defendants, and virtually ignored the Fourth Amendment. No progress would have been made had the Court of 1950 adopted the attitude of the Court of 1990."). Habeas cases were the vehicle for the establishment of many other criminal procedural rights. Eg., Roberts v. La Vallée, 389 U.S. 40 (1967) (holding statutory fee for preliminary hearing transcript unconstitutional as applied to indigent defendant);
70. Barker v. Wingo, 407 U.S. 514 (1972) (rejecting rule that defendant's failure to demand timely trial waives Sixth Amendment right to speedy trial and adopting balancing test to determine whether right has been violated); Blackledge v. Perry, 417 U.S. 21 (1974) (holding that due process bars vindictive charging following defendant's exercise of right to trial de novo); Estelle v. Williams, 425 U.S. 501 (1976) (stating that compelling defendant to stand trial dressed in prison uniform would violate due process); Henderson v. Morgan, 426 U.S. 637 (1976) (holding due process to require that defendant be informed of critical elements of offense before guilty plea); Castaneda v. Partida, 430 U.S. 482 (1977) (ruling that statistical disparity between proportion of Mexican-Americans in population and in jury pools established prima facie case of equal protection violation).
71. This is not to say that the Court could not have devised different, and potentially more effective, federal judicial remedies. For example, the Court could have looked to discrimination cases as a model for alternative remedies such as injunctions against state criminal justice officials, civil damages actions against state judges and prosecutors, or removal of state criminal cases to the federal courts. See Robert M. Cover & T. Alexander Aleinikoff, Dialectical Federalism: Habeas Corpus and the Court, 86 YALE LJ. 1035, 1039-40 (1977) (discussing "Warren Court's failure to develop equitable relief for criminal justice reform"). One explanation for the Court's divergent approaches is that in the discrimination context the Court had to create an effective federal forum for litigating constitutional claims and often ended up with a collective solution. In the criminal justice context, where the existing combination of certiorari review in the Court and habeas review in the lower federal courts presented an obvious federal forum for single defendants' claims, the Court merely had to redesign an existing path to serve its ends. See Brandon L. Garrett, Aggregation in Criminal Law, 95 CAL. L. REV. 383, 389-410 (2007) (discussing reasons why criminal litigation, unlike civil litigation, tends not to be aggregated).
72. Brennan, supra note 24.
73. Id. at 440. Brennan speculated that "the sensitivity of state judges towards federal habeas corpus has been heightened as the Supreme Court has dealt increasingly with state administration of justice in constitutional terms." Id. This "sensitivity" to the Warren Court's constitutional pronouncements was expressed, in at least some cases, by resistance or even outright defiance on the part of state judges and other state officials. See Del Dickson, State Court Defiance and the Limits of Supreme Court Authority: Williams v. Georgia Revisited, 103 YALE L.J. 1423, 1425, 1465-79 (1994) (chronicling confrontation between Georgia Supreme Court and U.S. Supreme Court in context of "Southern intransigence" over Warren Court rulings);
74. Robert G. McCloskey, Reflections on the Warren Court, 51 VA. L. REV. 1229,1260 (1965) (alluding to "[f]lamboyant gestures of defiance" and "subtler forms of resistance" to Warren Court).
75. Brennan, supra note 24, at 441 ("I have the personal conviction that if such [state postconviction] procedures were the rule and not the exception, redress by state judiciaries of violations of the Federal Constitution would ordinarily result, and intervention by any federal court including the United States Supreme Court would become unnecessary.").
76. We are in the process of writing a book that will develop this conception of the historic role of habeas corpus.
77. Justice Brennan noted the key role of habeas in restoring the balance of federalism just two years before the famous "trilogy" of habeas cases-Fay v. Noia, 372 U.S. 391 (1963); Sanders v. United States, 373 U.S. 1 (1963); and Townsend v. Sain, 372 U.S. 293 (1963)-that expanded the scope of the writ: We prize our federalism because of the proved contributions of our federal structure towards securing individual liberty [Federalism's] goals are more surely approached through an administration of federal habeas corpus which puts the state courts on the path directed to securing state prisoners against invasion of the rights guaranteed them by the basic law of the land. Brennan, supra note 24, at 442.
78. The writ was first extended to state prisoners under judgment of criminal conviction by the Habeas Corpus Act of February 5, 1867, ch. 28, § 1, 14 Stat. 385-86.
79. See, e.g., S. 917, 90th Cong. § 702, 114 CONG. REC. 11,186, 11,189 (1968) (making prior state adjudications binding on federal habeas courts);
80. H.R. 13722, 92d Cong. (1972) (limiting grounds on which federal courts can engage in habeas corpus review); S. 3833, 92d Cong. (1972) (same); 119 CONG. REC. 2220-26 (1973) (statement of Sen. Hruška) (discussing history of Department of Justice and National Association of Attorneys General efforts to limit scope of federal habeas review);
81. Hearing Before the S. Comm. on the Judiciary on S. 2216: A Bill To Reform Habeas Corpus Procedures, and for Other Purposes, 97th Cong. 13 (1982) (limiting habeas to claims that have not been "fully and fairly adjudicated" in state court).
82. Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. No. 104-132, 110 Stat. 1214 (codified as amended in scattered sections of U.S.C).
83. Id. at 1217, 1219-21.
84. VANDERBILT-NCSC STUDY, supra note 1, at 54-60. The study examined a random sample of noncapital habeas petitions filed in federal district courts in 2003 and 2004. Information about each of these 2384 cases was collected from documents posted on PACER, the online filing system for federal courts. The study also collected information about capital habeas cases. The study sample consisted of 368 capital habeas cases commenced in 2000,2001, and 2002 in the thirteen federal districts with the highest numbers of capital habeas filings. These 368 cases represented more than half of all the habeas cases filed by death row inmates nationally. Information about each of these cases was collected from courthouses and federal archives as well as PACER. See id. at 15-17 (describing methodology).
85. Id. at 55 (noting earlier studies and comparison data).
86. Id. at 22 (basing figures on analysis of 57% of study sample (cases in which date of judgment was available); also noting that median time between prisoner's state judgment and federal habeas filing was 5.7 years).
87. See id. ("[C]ases not barred [by the statute of limitations] averaged an interval of 5.6 years [between state judgment and federal filing.]"). The pre-AEDPA studies did not separate out filing periods for administrative challenges, Karen M. Allen et al., Federal Habeas Corpus and Its Reform: An Empirical Anaylsis, 13 RUTGERS L.J. 675, 679 nn. 6-9 (1982), ROBERT A. HANSON & HENRY W. K. DALEY, U.S. DEP'T OF JUST., FEDERAL HABEAS CORPUS REVIEW: CHALLENGING STATE COURT CRIMINAL CONVICTIONS 6-9 (1995), available at http://ojp.usdoj.gov/bjs/pub/pdf/fhcrcscc.pdf, and there was no habeas filing deadline at the time.
88. Antiterrorism and Effective Death Penalty Act of 1996 §101. A state postconviction petition rejected by the state court as untimely is not "properly filed." Pace v. DiGugliemo, 544 U.S. 408, 417 (2005).
89. Because under AEDPA no more than one year of delay in filing a habeas petition can be attributed to the prisoner, the average pre-filing delay that is attributable to the habeas exhaustion requirement is at least four years. This is unlikely to shrink significantly as long as post trial litigation in the state courts continues to exist in its current form. Although we do not know what the average filing period was before AEDPA if cases challenging administrative decisions made after commitment to prison are excluded (earlier studies did not report filing periods for these cases separately), an unpublished analysis of the Vanderbilt-NCSC study data shows that even after removing all cases challenging only administrative decisions and all cases found to be time-barred, the average filing period for timely challenges to conviction or sentence is 1800 days, or just 24 days short of 5 years. Memorandum from Nancy J. King to the New York University Law Review (Mar. 30, 2009) (on file with the New York University Law Review).
90. Others have observed that relief for claims cognizable only on collateral review is inaccessible for all but those sentenced to relatively lengthy terms. See, e.g., Eve Brensike Primus, Structural Reform in Criminal Defense: Relocating Ineffective Assistance of Counsel Claims, 92 CORNELL L. REV. 679, 693-94, 706-10 (2007) (arguing that because direct appeals take "more than four or five years" in "many jurisdictions" only those state defendants with longest sentences will seek collateral relief and also that litigation of ineffective assistance claims must be shifted to direct appeal stage).
91. Duróse & Langan 2004, supra note 2, at 1, 2 (reporting that of that 60%, half received a local jail sentence and half received no sentence of incarceration at all).
92. Id. at 3 (reporting that average sentence for state felons sentenced to incarceration in 2004 was 37 months and average prison sentence was 57 months).
93. Matthew R. Duróse & Patrick A. Langan, Felony Sentences in State Courts, 2002, BUREAU OF JUST. STAT. BULL. (U.S. Dep't of Justice, Washington, D.C.), Dec. 2004, at 5 tbl.4, 6 [hereinafter Durose & Langan 2002], available at http://www.ojp.usdoj.gov/bjs/pub/ pdf/fssc02.pdf (reporting that average prison sentence in 2002 was 53 months and average estimated time served until first release was 27 months);
94. see also BUREAU OF JUST. STAT., U.S. DEP'T OF JUSTICE, SOURCEBOOK OF CRIMINAL JUSTICE STATISTICS 2003, at 511 tbl.6.44 (Ann L. Pastore & Kathleen Maguire eds., 2005) (reporting that between 1990 and 1999 average percentage of sentence that state prisoners served increased from 38.0% to 48.7%).
95. VANDERBILT-NCSC STUDY, supra note 1, at 37.
96. Id. at 41, 56.
97. Id. at 56.
98. Id. at 43.
99. Id. at 20. Information about sentence type was available for 60% of the sampled noncapital cases, id., and henceforth all sentence statistics cited from the Vanderbilt-NCSC Study will refer to this pool.
100. Duróse & Langan 2004, supra note 2, at 3; see also Duróse & Langan 2002, supra note 54, at 4 (indicating that life sentences make up 1.1% of prison sentences but 24.1% of sentences for murder or nonnegligent manslaughter).
101. VANDERBILT-NCSC STUDY, supra note 1, at 20.
102. See supra notes 53-54 and accompanying text (noting average prison terms and time served).
103. William J. Sabol & Heather Couture, Prison Inmates at Midyear 2007, BUREAU OF JUST. STAT. BULL. (U.S. Dep't of Justice, Washington, D.C.), June 2008, at 1 tbl.1, available at http://www.ojp.usdoj.gov/bjs/pub/pdf/pim07.pdf (noting that state prisons held 1,395,916 inmates in 2007);
104. William J. Sabol & Todd D. Minton, Jail Inmates at Midyear 2007, BUREAU OF JUST. STAT. BULL. (U.S. Dep't of Justice, Washington, D.C.), June 2008, at 1, available at http://www.ojp.usdoj.gov/bjs/pub/pdf/jim07.pdf (noting that local jails held 780,581 inmates in 2007).
105. VANDERBILT-NCSC STUDY, supra note 1, at 52, 58.
106. Id. at 52, 58, 116.
107. AEDPA has not slowed habeas filings by state prisoners. FRED L. CHEESMAN II ET AL., NAT'L CTR. FOR STATE COURTS, A TALE OF TWO LAWS REVISITED: INVESTIGATING THE IMPACT OF THE PRISONER LITIGATION REFORM ACT AND THE ANTITERRORISM AND EFFECTIVE DEATH PENALTY E-9, at 64-81 (2004), available at http://contentdm.ncsconline.org/cgi- bin/showfile.exe?CISOROOT=/criminal&CISOPTR=19; JOHN SCALIA, U.S. DEP'T OF JUSTICE, BUREAU OF JUSTICE STATISTICS SPECIAL REPORT PRISONER PETITIONS FILED IN U.S. DISTRICT COURTS, 2000, WITH TRENDS 1980-2000, at 1 (2002), available at http://www.ojp.usdoj.gov/bjs/pub/pdf/ppfusd00.pdf. Habeas petitions filed by noncapital state prisoners made up one of every fourteen civil cases filed in the United States district courts in 2006. JAMES C DUFF, ADMIN. OFFICE OF THE U.S. COURTS, 2006 JUDICIAL BUSINESS OF THE UNITED STATES COURTS app. at 162 tbl C-2 (2007), available at http://www.uscourts.gov/judbus2006/contents.html. In some districts with large prison populations, habeas corpus and civil rights cases constitute almost half of all cases filed by state prisoners. Pamela A. MacLean, Inmate Petitions Swamp Judges: Emergency Call Issued For More Judges To Help Out, NAT'L L.J., Aug. 4, 2008, at 4 (noting that prisoner civil rights and habeas corpus petitions made up 46% of all new filings in fiscal year 2007 in Eastern District of California).
108. VANDERBILT-NCSC STUDY, supra note 1, at 52, 58-59.
109. See Nancy J. King, Regulating Settlement: What Is Left of the Rule of Law in the Criminal Process?, 56 DEPAUL L. REV. 389, 389-90 (2007) (listing constitutional claims defendants regularly waive in plea agreements);
110. Sourcebook of Criminal Justice Statistics Online, http://www.albany.edu/ sourcebook/pdf/t5462004.pdf (noting that in 2004 95% of state felony convictions followed guilty plea).
111. See Strickland v. Washington, 466 U.S. 668, 694 (1984) (holding that to prevail on Sixth Amendment claim of ineffective assistance of counsel petitioner must demonstrate both deficient performance by attorney and "reasonable probability" that but for attorney's errors, outcome of proceeding would have been different). For more on the failure of
112. VANDERBILT-NCSC STUDY, supra note 1, at 28, 56. The study examined only decisions of the district courts; we do not know whether any of the decisions to deny relief were reversed on appeal.
113. See James S. Liebman & William F. Ryan, "Some Effectual Power": The Quantity and Quality of Decisionmaking Required of Article III Courts, 98 COLUM. L. REV. 696,882 (1998) (arguing that habeas must function, along with appellate jurisdiction of Supreme Court, as "spot-check" on state judicial compliance with federal law);
114. see also Desist v. United States, 394 U.S. 244, 262-63 (1969) (Harlan, J., dissenting) (stating that writ of habeas corpus serves to "assure that no man has been incarcerated under a procedure which creates an impermissibly large risk that the innocent will be convicted" and "as a necessary additional incentive for trial and appellate courts throughout the land to conduct their proceedings in a manner consistent with established constitutional standards").
115. See Victor E. Flango & Patricia McKenna, Federal Habeas Corpus Review of State Court Convictions, 31 CAL. W. L. REV. 237, 262 (1995) ("There seems to be a common misconception that when habeas petitions are granted, a petitioner is set free. In reality, granted petitions may mean that bail is reduced for a petitioner, that the petitioner can appeal his conviction, or the petitioner may be granted a new trial."). " 428 U.S. 465, 493 (1976).
116. A top ten list of targeted barriers would include at least five of AEDPA's innovations: (1) the standard of review that permits state decisions to stand even when they are wrong so long as they are reasonably wrong, 28 U.S.C. § 2254(d)(1) (2006);
117. the rigid filing deadline, which is difficult to navigate for pro se filers and lacks any exception for new evidence of innocence, §2244(d); (3) the tighter restrictions on when a prisoner may file more than one habeas petition, §2244(b)(1)-(2); (4) the stringent showing required in order to obtain an evidentiary hearing to establish facts not developed in state court, §2254(e)(2); and (5) the green light to summary denial on the merits of a claim before the petitioner has developed it in state court, §2254(b)(2). Critics have also blamed several key limitations enforced or imposed by the Burger and Rehnquist Courts, first among them the refusal to extend the right to counsel to discretionary appeals and collateral review.
118. See Ross v. Moffitt, 417 U.S. 600 (1974) (denying right to counsel for discretionary appeals to state supreme court and U.S. Supreme Court); Murray v. Giarratano, 492 U.S. 1 (1989) (denying right to counsel on collateral review for all cases, capital and noncapital). Additional limitations were imposed in Stone v. Powell, 428 U.S. 465, barring federal habeas review of Fourth Amendment claims; in Wainwright v. Sykes, 433 U.S. 72 (1977), and Coleman v. Thompson, 501 U.S. 722 (1991), banning review of almost all claims a petitioner or his lawyer failed to raise in a timely manner in state court; in Teague v. Lane, 489 U.S. 288 (1989), mandating with narrow exceptions the dismissal of claims based on a constitutional rule announced subsequent to the petitioner's state court conviction; and in Brecht v. Abrahamson, 507 U.S. 619 (1993), permitting federal courts to deny relief for a proven constitutional violation even when there is a reasonable doubt that it may have influenced the decision to convict or sentence.
119. E.g., Steven Semeraro, Enforcing Fourth Amendment Rights Through Federal Habeas Corpus, 58 RUTGERS L. REV. 983, 986 (2006) (calling for overruling of Stone);
120. Larry W. Yackle, The Habeas Hagioscope, 66 S. CAL. L. REV. 2331, 2424-26 (1993) (describing current habeas approach as "jurisprudential morass").
121. Attacks on AEDPA are too numerous to catalogue. See, e.g., Bryan A. Stevenson, Confronting Mass Imprisonment and Restoring Fairness to Collateral Review of Criminal Cases, 41 HARV. C.R.-C.L. L. REV. 339, 360 (2006) ("Repeal or suspension of the AEDPA is now required to improve the quality and reliability of criminal justice in the United States.");
122. Kenneth Williams, The Antiterrorism and Effective Death Penalty Act: What's Wrong with It and How To Fix It, 33 CONN. L. REV. 919, 920 (2001) (arguing that AEDPA "must be amended" to provide "meaningful habeas review").
123. E.g., Donald A. Dripps, Ineffective Litigation of Ineffective Assistance Claims: Some Uncomfortable Reflections on Massaro v. United States, 42 BRANDEIS L.J. 793, 801-02 (2004) (arguing that counsel should be provided for initial state postconviction proceeding); Stevenson, supra note 76, at 358-59 (arguing that counsel should at least be provided for capital prisoners and those sentenced to life in prison).
124. Casper & Posner, supra note 14, at 366 ("[T]he benefits to the applicant for review if he obtains a reversal of the lower court's judgment are so great, or the costs of applying for review so small, that even a substantial decline in the probability of obtaining review will not deter the application.").
125. See VANDERBILT-NCSC STUDY, supra note 1, at 22-23 (finding that 62% of in forma pauperis motions filed in noncapital cases were granted).
126. As Justice Jackson pointed out, "He who must search a haystack for a needle is likely to end up with the attitude that the needle is not worth the search." Brown v. Allen, 344 U.S. 443, 537 (1953) (Jackson, J., concurring). The flood of meritless habeas claims also consumes federal judicial resources that could be deployed elsewhere, thus threatening the interests of not only deserving habeas petitioners but also all other federal litigants, such as federal criminal defendants and civil litigants.
127. See Primus, supra note 51, at 688-93 (arguing that ineffective assistance of counsel claims are practically limited by structural limitations). This is one of the reasons Professor Primus proposes litigating most ineffective assistance claims on direct appeal instead of postconviction. Id. at 695.
128. See supra note 66.
129. Id. at 38. The study's capital-case sample consisted of every capital case filed during the years 2000, 2001, and 2002 in thirteen high-volume districts. Id. at 16-17. Docket entries for pending noncapital and capital cases were counted at the end of 2006. Id. at 18. Among noncapital cases filed in districts within the Ninth Circuit, there was more litigation activity, with twenty-three entries on average. Id. at 38.
130. Id. at 34 (noting that 58.2% of noncapital cases included responsive motion and that 66.3% of those cases included petitioner's reply).
131. Id. at 28.
132. Id. at 34. This figure was 18% in the Ninth Circuit, and in some districts it was over 30%. Id.
133. Id. at 36. United States magistrate judges issued nearly 9000 reports and recommendations in state habeas cases between October 1, 2006 and September 30, 2007. JAMES C DUFF, ADMIN. OFFICE OF THE U.S. COURTS, JUDICIAL BUSINESS OF THE UNITED STATES COURTS: 2007 ANNUAL REPORT OF THE DIRECTOR app. at 381 tbl.M-4B (2008), available at http://www.uscourts.gov/judbus2007/JudicialBusinespdfversion.pdf.
134. Nationwide, those noncapital cases including a magistrate judge's report and recommendation averaged twenty-one docket entries. VANDERBILT-NCSC STUDY, supra note 1, at 38.
135. Id. at 23.
136. Id. at 53 & n.90 (reporting rulings on certificates of appealability and noting rulings denying motions for reconsideration after final order was entered). As of December 2009, absent action by Congress, the rules governing habeas proceedings will require district judges to consider the certificate of appealability question at the time they dispose of the claim. See COMM. ON RULES OF PRACTICE & PROCEDURE, REPORT OF THE JUDICIAL CONFERENCE app. E at 72-73 (2008), available at http://www.uscourts.gov/rules/ Reports/ ST09-2008.pdf; see also 28 U.S.C. §2074 (2006) (Rules Enabling Act).
137. See, e.g., Majority of Courts of Appeals Now Live with CM/ECF, 40 THE THIRD BRANCH (Admin. Office of the U.S. Courts, Washington, D.C.), May 2008, available at http://www.uscourts.gov/ttb/ 2008-05/article05.cfm (stating that about 45% of court of appeals filings are pro se and will have to be scanned by hand).
138. VANDERBILT-NCSC STUDY, supra note 1, at 36 (noting that 0.3% of noncapital cases included deposition or examination; 0.4% included evidentiary hearing).
139. See, e.g., Hearing on Habeas Reform: The Streamlined Procedures Act of 2005: Hearing on S. 1088 Before S. Comm. on the Judiciary, 109th Cong. 2-3 (2005), available at http://www.constitutionproject.org/pdf/eisenberg-11- 16-05-testimony1.pdf (testimony of Ronald Eisenberg, Deputy District Att'y, Phila., Pa.) ("In the last decade, the number of [our] lawyers employed exclusively on habeas work has increased 400%. The truth is that, whether or not they end up reversing a conviction, federal habeas courts drag out litigation for years of utterly unjustifiable delay, creating exorbitant costs for the state.").
140. John L. Carroll, Habeas Corpus Reform: Can Habeas Survive the Flood?, 6 CUMB. L. REV. 363, 364 & n.8 (1975) (characterizing claims in such prominent criticisms as Henry J. Friendly, Is Innocence Irrelevant? Collateral Attacks on Criminal Judgments, 38 U. CHI. L. REV. 142, 142 (1970), and Shirley M. Hufstedler, Comity and the Constitution: The Changing Role of the Federal Judiciary, 47 N.Y.U. L. REV. 841, 852-53 (1972)). Professor Bator's influential 1963 article also criticized the Court's new habeas review as an unjustified waste of resources. Bator, supra note 34, at 512.
141. FED. JUDICIAL CTR., REPORT OF THE STUDY GROUP ON THE CASELOAD OF THE SUPREME COURT 14 (1972), reprinted in 57 F.R.D. 573, 587 (1972). Previous reports of grant rates by federal habeas petitioners in noncapital cases include those collected in note 19, supra. See also ROGER A. HANSON & HENRY W.K. DALEY, U.S. DEP'T OF JUSTICE, FEDERAL HABEAS CORPUS REVIEW: CHALLENGING STATE COURT CRIMINAL CONVICTIONS 6-7, 17 (1995), available at http://www.ojp.usdoj.gov/bjs/pub/pdf/fhcrcscc.pdf (reporting grant rate of 1% for more than 2000 habeas cases terminated in 1992);
142. Allen et al., supra note 48, at 679 n.6, 683 (finding grant rate of 3.2% for 1899 cases from six districts filed from 1975 to 1977);
143. Richard Faust et al., The Great Writ in Action: Empirical Light on the Federal Habeas Corpus Debate, 18 N.Y.U. REV. L. & Soc CHANGE 637, 668, 677-80 tbl.2 (1991) (reporting grant rate of 3-4% for 585 cases filed from 1973-1975 and 1979-1981 in Southern District of New York);
144. Flango & McKenna, supra note 72, at 241 tbl.l, 259 tbl.13 (1995) (analyzing more than 1600 cases terminated in 1990 and 1992 from eight districts in four states and finding grant rate of less than 1% for most claims);
145. David L. Shapiro, Federal Habeas Corpus: A Study in Massachusetts, 87 HARV. L. REV. 321, 321, 340 (1973) (finding grant rate of less than 4% in District of Massachusetts between 1970 and 1972);
146. J. Skelly Wright & Abraham D. Sofaer, Federal Habeas Corpus for State Prisoners: The Allocation of Fact-Finding Responsibility, 75 YALE L.J. 895, 899 n.16 (1966) (citing average petition grant rate of 3.5% in fiscal years 1963 (forty-two of 1662 granted), 1964 (125 of 3220) and 1965 (154 of 4186)).
147. See infra Part IV.B-D (discussing Suspension Clause).
148. Allegations of unauthorized detention or imprisonment in the absence of any court judgment, which have been the subject of the common law habeas remedy as far back as the Magna Carta, would remain cognizable under 28 U.S.C. §2241 (2006), as they are today. This type of challenge generally is associated with suits by federal detainees. See, e.g., Boumediene v. Bush, 128 S. Ct. 2229, 2240 (2008) (ruling on habeas petition by aliens detained as enemy combatants at United States Naval Station at Guantanamo Bay, Cuba);
149. see also infra text accompanying notes 170-84 (discussing Boumediene). A petitioner may also challenge detention by state authorities, as in a challenge to pretrial confinement.
150. See, e.g., Walck v. Edmondson, 472 F.3d 1227, 1235 (10th Cir. 2007) (collecting authorities regarding state prisoner challenges to pretrial detention on ground of double jeopardy);
151. Stringer v. Williams, 161 F.3d 259, 262 (5th Cir. 1998) (holding that state defendants challenging their pretrial detention should bring habeas petitions under §2241).
152. Many convicted defendants will make claims of factual innocence because for most it will be the only possible avenue to obtain habeas relief, but very few will be in a position to make a facially plausible claim of innocence based on newly discovered evidence. Most such claims, therefore, should be resolved relatively quickly.
153. Apart from prior convictions, "any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt." Apprendi v. New Jersey, 530 U.S. 466, 490 (2000).
154. Under our proposal, this innocence gateway to federal review of constitutional error would be one of two opportunities for a defendant to raise his claim of innocence of the crime of conviction in states that provide similar review.
155. We leave it up to the Court to decide whether a sufficiently strong showing of factual innocence, standing alone, might serve as a constitutional claim warranting possible habeas relief. See Herrera v. Collins, 506 U.S. 390, 417 (1993) (assuming, arguendo, that "in a capital case a truly persuasive demonstration of 'actual innocence' made after trial would warrant federal habeas relief if there were no state avenue open to process such a claim").
156. 489 U.S. 288 (1989).
157. Id. at 307, 311 (holding that new constitutional rules will not be retroactively applicable to cases on collateral review unless they prohibit criminalization of "certain kinds of primary, private individual conduct" or enforce the observance of procedures "implicit in the concept of ordered liberty" (quoting Mackey v. United States, 401 U.S. 667,692 (1971) and Palko v. Connecticut, 302 U.S. 319, 325 (1937))).
158. A petitioner in this category might claim either that the state's evidence was insufficient to establish an aggravating circumstance that was relied upon at trial to justify the death sentence or that he cannot be legally executed under the Eighth Amendment. E.g., Kennedy v. Louisiana, 128 S. Ct. 2641 (2008) (holding that death penalty is unconstitutional for crime of rape of child who is not killed);
159. Panetti v. Quarterman, 127 S. Ct. 2842, 2860-61 (2007) (noting that "insane" cannot be executed);
160. Roper v. Simmons, 543 U.S. 551 (2005) (holding death penalty unconstitutional for juveniles under age eighteen);
161. Atkins v. Virginia, 536 U.S. 304 (2002) (holding death penalty unconstitutional for mentally retarded defendants);
162. Tison v. Arizona, 481 U.S. 137 (1987) (holding death penalty unconstitutional for non-triggermen who do not exhibit reckless indifference to human life).
163. We plan to address the appropriate role of habeas corpus in capital cases in a book we are now writing.
164. See Joseph L. Hoffmann & William J. Stuntz, Habeas After the Revolution, 1993 SUP. CT. REV. 65,118-22 (1994) (arguing for separate habeas policy for capital and noncapital cases).
165. Numbers of capital and noncapital federal habeas petitions have remained relatively stable over the past several years. In 2007, there were 232 capital petitions and 18,907 noncapital; in 2006, 236 and 18,959; in 2005, 229 and 18,961; in 2004, 214 and 18,431.
166. DUFF, supra note 87, app. at 146 tbl.C-2;
167. DUFF, supra note 66, app. at 163 tbl.M-4B;
168. LEONIDAS RALPH MECHAM, ADMIN. OFFICE OF THE U.S. COURTS, JUDICIAL BUSINESS 2005 app. at 159 tbl.C-2, available at http://www.uscourts.gov/ judbus2005/appendices/c2.pdf;
169. LEONIDAS RALPH MECHAM, ADMIN. OFFICE OF THE U.S. COURTS, 2004 JUDICIAL BUSINESS app. at 133 tbl.C-2, available at http://www.uscourts. gov/judbus2004/appendices/c2.pdf.
170. And while the number of prisoners under sentence of death has been declining for six years, TRACY L. SNELL, U.S. DEP'T OF JUSTICE, CAPITAL PUNISHMENT, 2006 - STATISTICAL TABLES, at tbl.4 (2007), available at http://www.ojp.usdoj.gov/bjs/pub/html/cp/2006/cp06st.htm, the number of those sentenced to incarceration continues to rise, Duróse & Langan 2004,
171. supra note 2, at 1 (noting 24% increase in number of annual felony convictions between 1994 and 2004);
172. Duróse & Langan 2002,
173. supra note 54, at 9 (noting no significant change in proportion of felons sentenced to prison or incarceration between 1994 and 2002).
174. Otherwise, the Court will have to devote even more of its finite docket to capital cases than it does now. For a critical assessment of the Supreme Court's so-called "death docket," noting that the Court averages six capital cases per term, see Douglas A. Berman, A Capital Waste of Time? Examining the Supreme Court's "Culture of Death," 34 OHIO N.U. L. REV. 861 (2008).
175. As Justice Stevens speculated in Harris v. Alabama, The "higher authority" to whom present-day capital judges may be "too responsive" is a political climate in which judges who covet higher office-or who merely wish to remain judges-must constantly profess their fealty to the death penalty. The danger that they will bend to political pressures when pronouncing sentence in highly publicized capital cases is the same danger confronted by judges beholden to King George III. 513 U.S. 504, 519-20 (1995) (Stevens, J., dissenting).
176. During the years prior to AEDPA, federal courts invalidated capital judgments in two of every five cases. After AEDPA, that rate appears to have declined, but remains much higher than in noncapital cases. VANDERBILT- NCSC STUDY, supra note 1, at 61 (noting grant rate of 12-13% among 267 terminated capital cases, with 95 cases still pending).
177. 428 U.S. 465 (1976).
178. Id. at 482. The Court's decision in Stone was based in part on the nature of the exclusionary rule as an enforcement mechanism for search and seizure violations in particular. The Court later refused to extend Stone's rationale to bar habeas review of other constitutional claims, namely grand jury discrimination, insufficient evidence to support conviction, violations of Miranda, and ineffective assistance of counsel where counsel failed to raise a meritorious search and seizure claim.
179. See Withrow v. Williams, 507 U.S. 680, 687-88 (1993) (citing and discussing cases declining to extend Stone).
180. It is unlikely that these exceptions would frequently come into play. Currently, fewer than 4% of noncapital petitioners challenge their conviction or sentence based upon new evidence of innocence. VANDERBILT-NCSC STUDY, supra note 1, at 30. According to Professor Brandon Garrett's empirical survey, even prisoners ultimately exonerated rarely raised claims of innocence in habeas.
181. Garrett, supra note 8, at 128. Not only were very few "bare innocence" claims raised but also a showing of innocence never served as a basis for judicial rejection of a state's claim of procedural default. VANDERBILT-NCSC STUDY,
182. supra note 1, at 48-49. Regarding our second exception, the Supreme Court has never held retroactive any rule affecting noncapital petitioners, other than the rule in Gideon. Whorton v. Bockting, 549 U.S. 406, 419 (2007).
183. JUDICIAL CONFERENCE OF THE U.S., AD HOC COMM. ON FED. HABEAS CORPUS IN CAPITAL CASES, COMMITTEE REPORT AND PROPOSAL 11 (1989), reprinted in Habeas Corpus Legislation: Hearings on H.R. 4737, H.R. 1090, H.R. 1953, and H.R. 32584 Before the H. Subcomm. on Courts, Intellectual Property, and the Admin, of Justice of the H. Comm. on the Judiciary, 101st Cong. 46, 56 (1990). A version of the Powell Commission's "opt-in" proposal eventually was enacted as part of AEDPA,
184. see 28 U.S.C. §§2265(a), 2266(b)(1)(A) (2006), but no state thus far has been found to qualify for the more restrictive "opt-in" capital habeas rules.
185. See supra text accompanying note 6.
186. James S. Liebman, Opting for Real Death Penalty Reform, 63 OHIO ST. L.J. 315, 333-40 (2002);
187. see also Liebman,
188. supra note 26, at 2073-78 (criticizing system that focuses on habeas litigation rather than trial litigation);
189. cf. Andrew Hammell, Diabolical Federalism: A Functional Critique and Proposed Reconstruction of Death Penalty Federal Habeas, 39 AM. CRIM. L. REV. 1, 69-72 (2002) (proposing abbreviated and highly deferential habeas review in capital cases where state can show it provided specified procedural safeguards).
190. Indeed, the fundamental concept of preferring preventive solutions over post hoc remedies for constitutional violations dates back at least as far as the 1960s. In Miranda v. Arizona, 384 U.S. 436 (1966), the Supreme Court adopted a prophylactic approach, mandating warnings to suspects in lieu of case-by-case review of challenges to police interrogations. In the context of guilty pleas, Fed. R. Crim. P. 11 performs a similar prophylactic function: Once a defendant states in a hearing under the Rule that he knows the consequences of his plea and the terms of any bargain and that he is waving his rights voluntarily, he cannot easily claim otherwise.
191. See 5 LAFAVE ET AL., supra note 11, at 888-89 & n.104 (collecting authorities demonstrating courts' inclination to deny defendants' attempts to withdraw guilty pleas).
192. 1979 ABA RESOLUTION, supra note 10.
193. See generally Norman Lefstein, In Search of Gideon's Promise: Lessons from England and the Need for Federal Help, 55 HASTINGS L.J. 835, 924-28 (2004) (discussing history and current status of ABA Resolution and proposal for Federal Center for Defense Services).
194. Center for Defense Services Act, S. 2170, 96th Cong. (1979) (summarized at http:// thomas.loc.gov (follow "Try the Advanced Search" hyperlink; then follow "View 100-93" hyperlink; then follow "96" hyperlink; then type "Center for Defense Services" in "Enter Search" box; then follow "S. 2170" hyperlink));
195. see also Lefstein, supra note 118, at 926-27 (describing DeConcini/Kennedy bill).
196. See Lefstein, supra note 118, at 927.
197. See id.
198. STANDING COMM. ON LEGAL AID AND INDIGENT DEFENDANTS, AM. BAR ASS'N, REPORT TO THE HOUSE OF DELEGATES (1998), available at http://www.abanet.org/ legalservices/downloads/sclaid/115. pdf;
199. STANDING COMM. ON LEGAL AID AND INDIGENT DEFENDANTS, AM. BAR ASS'N, REPORT TO THE HOUSE OF DELEGATES (2005), available at http://www.abanet.org/legalservices/downloads/sclaid/ indigentdefense/resl07.pdf; Lefstein, supra note 118, at 927.
200. Conversation with Professor Norman Lefstein, Indiana University School of Law-Indianapolis, in Indianapolis, Ind. (July 1, 2008) (notes on file with the New York University Law Review);
201. see also THE 2009 CRIMINAL JUSTICE TRANSITION COAL., SMART ON CRIME: RECOMMENDATIONS FOR THE NEXT ADMINISTRATION AND CONGRESS (2008), available at http://brennan.3cdn.net/ 8b63a89d8e019025c3-6om6blijc.pdf (advocating, on behalf of more than twenty-five criminal justice organizations and experts, creation of federal center).
202. See, e.g., Halbert v. Michigan, 545 U.S. 605, 620-21 (2005) (noting vital importance of counsel to indigent defendants, 70% of whom "fall in the lowest two out of five levels of literacy-marked by an inability to do such basic tasks as write a brief letter to explain an error on a credit card bill, use a bus schedule, or state in writing an argument made in a lengthy newspaper article" (quoting Kowalski v. Tesmer, 543 U.S. 125, 140 (2004) (Ginsburg, J., dissenting)));
203. Bator, supra note 34, at 458 ("Many commentators agree that it is the problem of assistance of counsel which lies at the heart of the great issue of creating fair procedures in the states' administration of criminal justice.").
204. 466 U.S. 668 (1984). For a discussion of the Strickland standard of review,
205. see note 69, supra.
206. See supra notes 3-4 and accompanying text (discussing struggle of various state and local governments to adequately provide defense services).
207. For an updated account, discussing underfunding of state criminal defense representation and associated problems, see generally Mary Sue Backus & Paul Marcus, The Right to Counsel in Criminal Cases, a National Crisis, 57 HASTINGS L.J. 1031 (2006).
208. In 2004, the ABA noted some of the failures of defense representation systems: Too often when attorneys are provided, crushing workloads make it impossible for them to devote sufficient time to their cases, leading to widespread breaches of professional obligations. To make matters worse, exceedingly modest compensation deters private attorneys from performing more than the bare minimum required for payment. Further, the structure of indigent defense systems often means that judges and/or state and county officials control the attorneys, thereby denying them the professional independence afforded to their prosecution counterparts and to their colleagues retained by paying clients. ABA STANDING COMM. ON LEGAL AID AND INDIGENT DEFENDANTS, GIDEON'S BROKEN PROMISE: AMERICA'S CONTINUING QUEST FOR EQUAL JUSTICE 7 (2004) [hereinafter ABA, GIDEON'S BROKEN PROMISE], available at http://www.abanet.org/legalservices/ sclaid/defender/brokenpromise/fullreport. pdf.
209. See supra note 127;
210. see also DEBORAH L. RHODE, ACCESS TO JUSTICE 122-37 (2004) (discussing problem of inadequate representation and "inadequate responses" to problem). Some have argued that legislatures and judges must take more active measures to provide competent counsel.
211. See, e.g., Stephanos Bibas, The Psychology of Hindsight and After-the-Fact Review of Ineffective Assistance of Counsel, 2004 UTAH L. REV. 1, 10 ("We may have no choice but to fix the front end of the system, as back-end review simply does not work.");
212. see also Dripps, supra note 77, at 804 ("If we balk at the implications [of Strickland's presumption of effective assistance], then we should rethink the basic project of assessing effective assistance questions after the fact.");
213. William S. Geimer, A Decade of Strickland's Tin Horn: Doctrinal and Practical Undermining of the Right to Counsel, 4 WM. & MARY BILL RTS. J. 91, 147-48 (1995) (noting that "seldom are the instances in which claimants prevail if their claims are analyzed in straight Strickland terms");
214. Primus, supra note 51, at 686-89 (agreeing that Strickland is too lax and collecting material documenting "[structural ineffectiveness" of indigent defense representation due to lack of resources and financial incentives).
215. See ABA, GIDEON'S BROKEN PROMISE, supra note 127, at 29-35 (discussing reform strategies in states including Georgia, New York, Texas, and Virginia);
216. Vidhya Reddy, Indigent Defense Reform: The Role of Systemic Litigation in Operationalizing the Gideon Right to Counsel (Wash. Univ. Sch. of Law in St. Louis Working Paper No. 1279185,2008), available at http://ssrn.com/abstract-1279185 (tracing development of litigation-based reform strategy and advocating increased use of class action suits for detailed injunctive relief);
217. see also Note, Gideon's Promise Unfulfilled: The Need for Litigated Reform of Indigent Defense, 113 HARV. L. REV. 2062, 2063-65, 2068 (2000) (exhorting judiciary to employ same "intensive and comprehensive judicial oversight of public institutions to ensure compliance with" right to counsel as it has employed in other areas, in light of "the longevity and severity of [the] political process failure" of legislative inaction).
218. See THE SPANGENBERG GROUP, STATE INDIGENT DEFENSE COMMISSIONS 13-16 (2006)
219. [hereinafter INDIGENT DEFENSE COMMISSIONS], available at http://www.abanet.org/ legalservices/sclaid/defender/ downloads/state-indigentdefense-feb07.pdf (describing reforms following litigation in Louisiana, Massachussetts, Montana, and Oklahoma);
220. Jessa DeSimone, Bucking Conventional Wisdom: The Montana Public Defender Act, 96 J. CRIM. L. & CRIMINOLOGY 1479, 1507 (2006) (describing change to statewide public defender system based on national guidelines);
221. Reddy, supra note 129, at 19-32 (discussing consent orders and settlement agreements in state of Connecticut; Fulton County, Georgia; Allegheny County, Pennsylvania; and Grant County, Washington).
222. But see Bibas, supra note 128, at 10 ("While judges can promote effective assistance of counsel via systemic reform, they are reluctant to flex their muscles. Most judges see this kind of policy making as inappropriate for courts.").
223. The Spangenberg Group, the organization that has conducted much of this research for several states, was appointed by the court in the Allegheny County case as the consultant to assist with the administration of stipulated reforms and the filing of periodic reports. Reddy, supra note 129, at 28 & n.172. A list of states and counties for which the Group has prepared studies is available at http://www.spangenberggroup.com/ work-indig.html. The Group has also prepared a series of reports for the ABA.
224. See, e.g., THE SPANGENBERG GROUP, RATES OF COMPENSATION PAID TO COURT- APPOINTED COUNSEL IN NON-CAPITAL FELONY CASES AT TRIAL: A STATE-BY- STATE OVERVIEW (June 2007), available at http://www.abanet.org/legalservices/sclaid/defender/downloads/ 2007FelonyCompRatesUpdate-Nonfelony.pdf;
225. INDIGENT DEFENSE COMMISSIONS, supra note 130.
226. See INDIGENT DEFENSE COMMISSIONS, supra note 130, at 18 (recognizing "clear trend among the states toward the creation of a state body to be responsible for the delivery of indigent defense services throughout the state" in order to achieve "[a]ccountability; [o]versight; [u]niform policies and procedures; [u]niform standards; [r]eliable statistical information; [a]dministrative efficiency; [c]ost containment; [i]mproved quality of representation; and [a] central voice for indigent defense services").
227. 1979 ABA RESOLUTION, supra note 10;
228. see also Lefstein, supra note 118, at 925-28 (discussing ABA proposal and change it might have wrought, if enacted). The federal initiative proposed in this Essay is not intended as a substitute for other efforts to systemically reform defense representation systems in the states. Such efforts include litigation,
229. see, e.g., State v. Peart, 621 So. 2d 780, 783 (La. 1993) (finding that "the provision of indigent services in [New Orleans] is in many respects so lacking that defendants . . . are not likely to receive the . . . effective assistance of counsel the constitution guarantees" and remanding defendant's case for judgment under presumption of ineffective counsel), and ethical challenges to public-defender caseloads,
230. see Backus & Marcus, supra note 127, at 1080-90 (discussing potential ethics violation claims and possible state responses). For a comprehensive discussion of other reform alternatives, see generally Backus &
231. Marcus, supra note 127.
232. Congress created the Corporation for Public Broadcasting, a private, nonprofit corporation, in 1967. Corporation for Public Broadcasting, What Is the Corporation for Public Broadcasting?, http://www.cpb.org/aboutcpb/whatis.html (last visited Feb. 12, 2009). The President of the United States appoints each board member, who, upon Senate confirmation, serves a six-year term. Corporation for Public Broadcasting, Board of Directors, http://www.cpb.org/aboutcpb/ leadership/board (last visited Feb. 12, 2009).
233. The Legal Services Corporation was created by Congress in 1974. The group is managed by a "bipartisan, 11-member Board of Directors-appointed by the President of the United States with the advice and consent of the Senate-[that] oversees all aspects of LSC operations." Legal Services Corporation, What Is LSC?, http://www.lsc.gov/about/ lsc.php (last visited Feb. 12, 2009).
234. The LSC's mission is "[t]o promote equal access to justice in our Nation and to provide high quality civil legal assistance to low-income persons." Legal Services Corporation, Mission Statement, http://www.lsc.gov/about/ mission.php (last visited Feb. 12, 2009).
235. LSC funds generally cannot be used in criminal proceedings. Legal Servs. Corp. v. Velazquez, 531 U.S. 533, 536-39 (2001) (describing creation of organization, LSC grant programs, and limits placed on LSC funds by Congress).
236. The State Justice Institute was established by Congress in 1984 to "award grants to improve the quality of justice in the State courts."
237. Id.
238. Cf. United States v. Am. Library Ass'n, 539 U.S. 194, 203 (2003) ("Congress has wide latitude to attach conditions to the receipt of federal assistance in order to further its policy objectives." (citing South Dakota v. Dole, 483 U.S. 203, 206 (1987))).
239. In the 1990s, federal incentive grants coincided with changes in sentencing policy in twenty-one states. See WILLIAM J. SABOL ET AL., THE INFLUENCES OF TRUTH- INSENTENCING REFORMS ON CHANGES IN STATES' SENTENCING PRACTICES AND PRISON POPULATIONS 23-29 (2002), available at http://www.urban.org/UploadedPDF/ 410470-FINALTISrpt.pdf (examining effects of Violent Offender Incarceration and Truthin-Sentencing Incentive Grants Program in 1994 Crime Act, Pub. L. No. 103-322, 108 Stat. 1796). According to one major study, the federal program was a major factor in the enactment of the truth-in-sentencing law in five of these twenty-one states.
240. Id. at 27. One such state was New York, which "specifically changed its laws in order to qualify for federal grant funds."
241. Id. at 24. In ten of the remaining states the funding was a factor, but not a major factor.
242. Id. at 27;
243. see also PAULA M. DITTON & DORIS JAMES WILSON, U.S. DEPT. OF JUSTICE, BUREAU OF JUSTICE STATISTICS SPECIAL REPORT: TRUTH IN SENTENCING IN STATE PRISONS 3 (1999), available at http://www.ojp.usdoj.gov/bjs/pub/ pdf/tssp.pdf (noting that, in response to 1994 Act's grant programs, four states enacted truth-in-sentencing guidelines in 1994 and another eleven states did so one year later);
244. U.S. DEPT. OF JUSTICE, REPORT TO CONGRESS: VIOLENT OFFENDER INCARCERATION AND TRUTH-INSENTENCING INCENTIVE FORMULA GRANT PROGRAM 1 (Feb. 2005), available at http:// www.ojp.usdoj.gov/BJA/pdf/VOITISreport.pdf (reporting that of $10 billion appropriated for program, $2.7 billion was spent).
245. See Nora V. Demleitner, The Federalization of Crime and Sentencing, 11 FED. SENT'G REP. 123, 127 (1998) ("In recent years Congress has increasingly attached incentive grants to federal crime legislation. Alternatively, it has passed bills mandating the forfeiture of federal funding if a state does not comply with federal standards."). For example, the Justice for All Act of 2004, contains a provision entitled "Incentive Grants to States to Ensure Consideration of Claims of Actual Innocence," which provides grants to states to implement "reasonable" measures to preserve biological evidence and provides for postconviction access to testing. Pub. L. No. 108-405, §413,118 Stat. 2260, 2285 (codified at 42 U.S.C. §14136 note (2006)). Similarly, federal funding has been the essential catalyst for the nearly 2200 new drug courts established in the United States since 1989.
246. See C. WEST HUDDLESTON ET AL., DEPT. OF JUSTICE, PAINTING THE CURRENT PICTURE: A NATIONAL REPORT CARD ON DRUG COURTS AND OTHER PROBLEM-SOLVING COURT PROGRAMS IN THE UNITED STATES 3 tbl.1 (2008), available at http://www.ojp.usdoj.gov/BJA/pdf/ 12902-PCP-fnl.pdf (providing data on prevalence of drug courts);
247. id. at 16-18 ("For every federal dollar invested to start, implement, and expand drug courts, the states invest $4.40. These state investments show how critical federal investments can be to starting and sustaining innovations in criminal justice."). For a summary of the drug court grant program, as well as several other federal grant programs to facilitate state criminal justice initiatives,
248. see NATHAN JAMES, CONG. RESEARCH SERV., AN OVERVIEW AND FUNDING HISTORY OF SELECT DEPARTMENT OF JUSTICE (DOJ) GRANT PROGRAMS (2006), available at http:// www.fas.org/sgp/crs/misc/RL33489.pdf.
249. Innocence Protection Act of 2004, Pub. L. No. 108-405, §§401, 411-413, 421-426, 431-432, 118 Stat. 2278 (codified as amended in scattered sections of 18 U.S.C. and 42 U.S.C).
250. Id. §421.
251. Id. §§421, 424-425.
252. Id. §421(e). In a floor statement, Senator Patrick Leahy referred to programs in New York and North Carolina, two states that had established relatively independent state-wide entities for the purposes outlined in the Act, as models for the national program. Ronald Weich, The Innocence Protection Act of 2004: A Small Step Forward and a Framework for Larger Reforms, THE CHAMPION, Mar. 29, 2005, at 28, 30, available at http:/ /www.thejusticeproject.org/national-agenda/the- innocence-protection-act-of-2004-a-smallstep-forward-and-a-framework-for-larger- reforms.
253. Innocence Protection Act of 2004 §425.
254. See Lefstein, supra note 118, at 927 ("The report accompanying the [ABA] resolution noted that '[a]n approach linking funding to compliance with standards shows particular promise in fostering improvements in indigent defense systems.' To support its point, the report cited activities in Indiana and the work of the [Indiana Public Defender Commission]." (second alteration in original) (footnotes omitted));
255. see also John Gibeaut, Declaring Independence, A.B.A. J., Dec. 2001, at 41 (discussing Indiana's program);
256. Lefstein, supra note 118, at 911 (describing Indiana Public Defender Commission);
257. Karen Dorn Steele, Public Defenders To Limit Cases: Spokane County Adopting National Standards, SPOKESMAN-REV. (Spokane), Oct. 29,2007, at A6 (reporting on proposed ordinance in Spokane County, Washington, setting limits on defender caseloads, implementation of which is condition for increased state funding for indigent defense).
258. See Ronald F. Wright, Parity of Resources for Defense Counsel and the Reach of Public Choice Theory, 90 IOWA L. REV. 219, 222, 224, 230-42 (2004) (describing resource parity legislation in various jurisdictions);
259. see also Donald A. Dripps, Ineffective Assistance of Counsel: The Case for an Ex Ante Parity Standard, 88 J. CRIM. L. & CRIMINOLOGY 242, 244 (1998) (arguing that compliance with ex ante parity standard, which could entail improved staffing, increased compensation, and expanded support services for indigent defense lawyers, is "promising" method for ensuring effective representation).
260. 1979 ABA RESOLUTION, supra note 10.
261. Similar efforts by existing private organizations devoted to the improvement of defense services, most notably The Spangenberg Group, have had some preliminary success in prompting state-level reforms. See, e.g., Press Release, The Spangenberg Group, The Spangenberg Group Releases Comprehensive Study of the Indigent Defense System in Virginia, Legislature Responds with Initial Reforms (Apr. 10, 2004), available at http:// www.spangenberggroup.com/Virginia-Report.html (reporting Virginia's legislative response to critical report by The Spangenberg Group);
262. see also 2007 VA. INDIGENT DEF. COMM'N ANN. REP. 6-13, available at http://leg2.state.va.us/dls/h&sdocs.nsf/By+Year/ RD1582007/$file/ RD158.pdf (detailing activity to improve quality of indigent defense in Virginia).
263. See 42 U.S.C. §9660a (2006) (establishing Superfund grant program).
264. See, e.g., Justice for All Act, Pub. L. No. 108-405, §421,118 Stat. 2260,2286 (codified at 42 U.S.C. § 14163 (2006)) (specifying features of effective system of legal representation).
265. See supra note 132 and accompanying text (discussing state systems);
266. see also, e.g., Mike Blasky, State Report: Bay County Public Defenders Have Excess Workloads, BAY .CITY TIMES (Bay City, Mich.), June 18, 2008, at A3 (reporting difficulties of Michigan system in which counties are responsible for public defender funding and assignment);
267. North Dakota Commission on Legal Counsel for Indigents, http://www.nd.gov/indigents/ commission (last visited Feb. 10, 2008) (describing creation of statewide authority for delivery of defense services).
268. Cf. ABA, GIDEON'S BROKEN PROMISE, supra note 127, at 11, 43 (noting need for "effective training, professional development, and continuing education" of indigent defenders, and recommending state-level oversight of "attorney qualifications and performance"). Each state could be required to create and maintain a database that collects information about client complaints, judicial admonitions or sanctions, and case outcomes for both appointed and retained defense counsel. Peer review could be based on the model of a state-level committee of leading defense lawyers, chosen for their experience and expertise, provided with sufficient investigative resources, and charged with the duty to evaluate the performance of individual defense lawyers whenever questions arise due to patterns of client complaints, repeated judicial admonitions or sanctions, or case outcomes falling substantially below prevailing norms.
269. But see Kevin Krause, Judges Rely on Costlier Lawyers: Dallas County Could Save Millions Using Public Defenders, DALLAS MORNING NEWS, Apr. 3, 2007, at 1A (reporting study recommending limitation on county judges' ability to appoint private defense lawyers because practice costs Dallas County $7.2 million per year more than using public defenders).
270. See supra note 4 and accompanying text (collecting reports of public defender offices unable to take more cases due to caseloads);
271. BUREAU OF JUSTICE ASSISTANCE, U.S. DEP'T OF JUSTICE, KEEPING DEFENDER WORKLOADS MANAGEABLE (2001) (prepared by The Spangenberg Group), available at http://www.ncjrs.gov/pdffilesl/bja/185632.pdf (describing importance of manageable caseloads in indigent defense and outlining standards for manageable caseloads).
272. See ABA, GIDEON'S BROKEN PROMISE, supra note 127, at 9-10 (arguing that inadequate compensation makes recruitment and retention of experienced attorneys "extraordinarily difficult" and that "[njational standards recognize the importance of providing reasonable compensation to defense attorneys").
273. Id. at 10 (describing endemic resource shortfalls in public defender offices).
274. See Weich, supra note 143, at 29 (noting that earlier versions of Innocence Protection Act conditioned restricted habeas review of convictions on states' adoption of competent counsel standards but that, as compromise, bill sponsors "abandoned any linkage between counsel reforms and habeas corpus" so that "a state's failure to live up to the bill's requirements would not alter the scope of federal review of its death sentences").
275. Brennan, supra note 24, at 441 ("[A]s Chief Justice Schaefer of Illinois has said: 'The existence of the federal [habeas] remedy has stimulated the state courts to devise postconviction procedures. That stimulus should not now be removed.' " (alteration in original)
276. (quoting Schaefer, supra note 19, at 24));
277. see also Mary C. Hutton, Retroactivity in the States: The Impact of Teague v. Lane on State Postconviction Remedies, 44 ALA. L. REV. 421, 438 (1993) ("[T]he federal courts virtually forced the states to expand their postconviction remedies by threatening to free state prisoners, if the states failed to correct constitutional errors.");
278. Reitz, supra note 19, at 467 n.32, 469 (discussing Illinois Post-Conviction Hearing Act, "adopted in 1949 under the severe pressure of a series of Supreme Court cases involving Illinois prisoners" and motivated by threat of federal habeas proceedings);
279. Jordan Steiker, Restructuring Post-conviction Review of Federal Constitutional Claims Raised by State Prisoners: Confronting the New Face of Excessive Proceduralism, 1998 U. CHI. LEGAL F. 315, 342 (arguing that new state postconviction procedures protected state convictions from federal review because federal courts would defer to state factfinding and because "additional opportunities to enforce state procedural rules [led] to increased forfeitures in federal court").
280. See Shapiro, supra note 95, at 370 ("The study [under discussion] does not indicate ⋯ whether state postconviction remedies would be as adequate as they are without the spur of a broad federal habeas remedy, or whether state courts would be less solicitous of federal constitutional rights in close cases.").
281. For example, after the Court in Teague v. Lane, 489 U.S. 288 (1989), adopted a more restrictive approach to retroactivity for federal habeas, a few states followed suit. See Danforth v. Minnesota, 128 S.Ct. 1029, 1042 & n.17 (2008) (noting that courts in three states had concluded they were bound by Teague);
282. Hutton, supra note 158, at 460-62 (listing eight states in which courts followed Teague-in four, explicitly by choice).
283. Also, after the Court held in Stone v. Powell, 428 U.S. 465, 481-82 (1976), that federal courts need not provide collateral review of search and seizure claims that have been fairly litigated in state court, the Georgia Supreme Court adopted the reasoning in
284. Stone and restricted the availability of state habeas corpus review of such claims. Jacobs v. Hopper, 233 S.E.2d 169, 170 (Ga. 1977).
285. For more than a century, the U.S. Supreme Court has held that state direct appeals are not constitutionally mandated under the Due Process Clause. Halbert v. Michigan, 545 U.S. 605, 610 (2005)
286. (citing McKane v. Durston, 153 U.S. 684, 687 (1894)). Nor are state postconviction proceedings constitutionally protected as a matter of due process.
287. See Pennsylvania v. Finley, 481 U.S. 551, 556-57 (1987) ("Postconviction relief is even further removed from the criminal trial than is discretionary direct review. ⋯ States have no obligation to provide this avenue of relief.").
288. Certainly many of the arguments that we make about the inefficacy of federal habeas review would seem applicable to state appellate and postconviction review as well. This is particularly true of ineffective assistance claims. See, e.g.. Primus, supra note 51, at 691-97 (detailing structural problems with relying on state collateral review to enforce right to effective counsel). The only available study of success rates in state postconviction proceedings found that state courts granted ineffective assistance of counsel claims at a rate of eight percent and other Sixth Amendment claims at a rate of only one percent.
289. Flango & McKenna, supra note 72, at 259 tbl.12. Still, without more empirical research, and with so much variance in the scope of review provided by the different states, generalized conclusions are premature.
290. Given the empirical uncertainties about existing state judicial review of criminal cases, as well as uncertainty about how quickly our proposal might lead to improvements in state defense representation systems, we do not foreclose future changes-including cutbacks-in the scope of postconviction review of criminal cases by state courts. The approaches discussed in this section should be flexible enough to allow for serious consideration of future changes, but any such changes must await further study and analysis.
291. As a legal matter, although it may be convenient for states to model their own postconviction remedies after federal habeas corpus review, it may not always be appropriate to do so. The Danforth Court made clear that various judicially imposed restrictions on federal habeas derive from the unique nature of federal review and need not affect the scope of state court review. 128 S.Ct. at 1040 ("[C]ases [such as Teague] adjusting the scope of federal habeas relief ⋯ [are] based on statutory authority that extends only to federal courts applying a federal statute [and] cannot be read as imposing a binding obligation on state courts."). Congressional restrictions on the writ also reflect specific concerns about federal court review of state court proceedings, not concerns about review of criminal convictions generally. There are many practical and prudential reasons for states to maintain review procedures both more robust and more flexible than federal habeas review, including the need to efficiently address state and federal claims together, to exercise direct control over their own court systems, to respond to identified problems more quickly and creatively, and to adapt federal constitutional rules to local needs and conditions.
292. See Hutton, supra note 158, at 443-46 (arguing that states have superior ability to provide postconviction review). Postconviction remedies, even if first adopted partly to avoid federal habeas review, have become generally accepted in many states. Consider one Texas judge's analysis of potential state interests in broad postconviction review: Although an emphasis on the initial trial might militate in favor of the states restricting the scope of collateral review, specific state concerns weigh on the other side of the balance. For example, a state constitution or statute may independently reflect a policy decision to afford broad postconviction review. Another justification for broader state [than federal] review of final state convictions is the supervisory authority that the states' highest courts possess over the entire state judicial system.
293. Charles F. Baird, The Habeas Corpus Revolution: A New Role for State Courts?, 27 ST. MARY'S L.J. 297, 342, 344 (1996).
294. U.S. CONST, art. I, §9, cl. 2.
295. See Felker v. Turpin, 518 U.S. 651, 659-60 (1996) ("Before the Act of 1867, the only instances in which a federal court could issue the writ to produce a state prisoner were if the prisoner was 'necessary to be brought into court to testify,' was 'committed ⋯ for any act done ⋯ in pursuance of a law of the United States,' or was a 'subjec[t] or citizen[n] of a foreign State, and domiciled therein,' and held under state law." (alterations in original) (citations omitted)).
296. See Jordan Steiker, Incorporating the Suspension Clause: Is There a Constitutional Right to Federal Habeas Corpus for State Prisoners?, 92 MICH. L. REV. 862, 868 (1994) (arguing that Fourteenth Amendment constitutionalized federal habeas review of state criminal convictions to ensure supremacy of federal law);
297. Note, Proposed Modification of Federal Habeas Corpus for State Prisoners-Reform or Revocation?, 61 GEO. L.J. 1221, 1244 (1973) (arguing that adoption of Fourteenth Amendment contributed to Supreme Court "extend[ing] the scope of the suspension clause").
298. In Felker v. Turpin, the Court upheld AEDPA's restrictions on "second or successive" habeas petitions. 518 U.S. at 662-64. Although the Court noted that "[t]he writ of habeas corpus known to the Framers was quite different from that which exists today," the Court "assume[d] ⋯ that the Suspension Clause of the Constitution refers to the writ as it exists today, rather than as it existed in 1789."
299. Id. at 663-64. The Court held that the challenged aspects of AEDPA did not violate the Suspension Clause because they fell "well within the compass of th[e] evolutionary process" of equitable principles that regulate abuse of the writ of habeas.
300. Id. at 664.
301. In INS v. St. Cyr, 533 U.S. 289 (2001), the Court refused to find that Congress had statutorily withdrawn jurisdiction over federal habeas claims filed by detained immigrants absent a "clear, unambiguous, and express statement of congressional intent."
302. Id. at 314. Justice Stevens, writing for the majority, explained that "regardless of whether the protection of the Suspension Clause encompasses all cases covered by the 1867 Amendment extending the protection of the writ to state prisoners, or by subsequent legal developments, at the absolute minimum, the Suspension Clause protects the writ 'as it existed in 1789.' "
303. Id. at 300-01 (citations omitted) (quoting Felker, 518 U.S. at 663-64).
304. 128 S. Ct. 2229 (2008).
305. Id. at 2240.
306. Id. at 2271-74 (concluding that Detainee Treatment Act of 2005 failed to provide constitutionally "adequate substitute" for habeas).
307. Id. at 2273 (citing Williams v. Taylor, 529 U.S. 420, 436-37 (2000) (involving state prisoner habeas petition under 28 U.S.C. § 2254 (2006))).
308. Id. at 2263-66 (discussing cases involving federal prisoner habeas statute, 28 U.S.C. § 2255).
309. Felker v. Turpin, 518 U.S. 651, 664 (1996) (upholding AEDPA's restrictions on successive petitions). The Court itself curtailed federal habeas review in Stone v. Powell, barring federal habeas review of Fourth Amendment claims where petitioner had "opportunity for full and fair litigation" of claim in state court. 428 U.S. 465, 494 (1976). Justice Brennan's lead dissent argued, without mentioning the Suspension Clause, that the restriction should have been left to Congress,
310. id. at 506 (Brennan J., dissenting), implying that the Suspension Clause would not preclude significant congressional reductions in the substantive scope of habeas.
311. 128 S. Ct. at 2240, 2276 (holding that review procedures created by Detainee Treatment Act of 2005 "are not an adequate and effective substitute for habeas corpus").
312. Id. at 2266 (quoting INS v. St. Cyr, 533 U.S. 289, 302 (2001)).
313. Id. at 2241 (narrating genesis of CSRTs and Detainee Treatment Act of 2005).
314. Id. at 2274-76.
315. Id. at 2267-71 (asserting that "the necessary scope of habeas review in part depends upon the rigor of any earlier proceedings" and developing examples).
316. Id. at 2270.
317. Id. at 2273.
318. Id.
319. Id. at 2268-69. AU states today must provide criminal defendants with the right to a trial that complies fully with the Due Process Clause and includes the opportunity to raise constitutional claims concerning the investigation and adjudication of the case.
320. See, e.g., Carroll, supra note 94, at 396 (writing in 1975 that "[p]resent state postconviction remedies are obsolete and resort to them is costly and uncertain");
321. Reitz, supra note 19, at 472 (noting that, with few exceptions, states in 1960 were not only "indifferen[t] to reform but outright hostil[e] towards development of postconviction remedies"). Reitz also reported that, as of 1959, a record was available in only 18% of the cases filed in the Supreme Court seeking review of state postconviction proceedings, as compared to 61 % of petitions filed by federal prisoners.
322. Id. at 475 & n.75;
323. see also Michael F. Cole & Jeffrey Small, Note, State Post-conviction Remedies and Federal Habeas Corpus, 40 N.Y.U. L. REV. 154, 157-61 (1965) (noting traditional limitations of coram nobis and habeas in state court to correct constitutional error).
324. See 1 DONALD E. WILKES, JR., STATE POSTCONVICTION REMEDIES AND RELIEF HANDBOOK WITH FORMS § 2:5, at 41-45 (2008) (listing, for each state, date postconviction remedy was adopted).
325. See id. § 1:3, at 4-5 (noting that thirty-eight states use modern postconviction remedy created by statute or court rule);
326. id. § 1:4, at 7 (noting that presently in all states remedy may be used to raise claims that conviction was obtained in violation of constitutional right);
327. id. § 2:4, at 35-36 (noting that prior to modernization of state postconviction remedies, grounds for relief were limited to fundamental error). The National Conference of Commissioners on Uniform State Laws adopted a Uniform Post-Conviction Procedure Act in 1955 and revised it in 1966 and 1980. For the several versions,
328. see 3 WILKES, supra note 186, at app. A. The federal statute, 12 U.S.C § 2255 (2006), also served as a model
329. for some states. Professor Wilkes's treatise notes that for many states, the remedy is modeled after one version of the Uniform Act or the federal statute. See, e.g, 1 WILKES, supra note 186, § 12:2, at 715-16 (noting that Florida's remedy is modeled after section 2255);
330. WILKES, supra note 186, § 17:2, at 4-5 (noting that Indiana's law is based on the 1966 version of the Uniform Act); id. § 20:2, at 283-89 (noting that Kentucky's law is based on section 2255);
331. WILKES, supra note 186, § 39:2, at 144 (noting that Oklahoma's law is based on 1966 version of Uniform Act).
332. See DAVID B. ROTTMAN & SHAUNA M. STRICKLAND, U.S. DEP'T OF JUSTICE, STATE COURT ORGANIZATION, 2004, at tbl.22 (2006), available at http://www.ojp.usdoj.gov/bjs/ pub/pdf/sco04.pdf (charting scope of each state court's mandatory or discretionary review for criminal cases);
333. AFAVE ET AL., supra note 11, § 27.1(a) (reviewing state appellate procedures and noting that in handful of states, review of felony convictions remains at discretion of state's highest court). For a fifty-state survey of postconviction remedies for state prisoners, see WILKES, supra note 186.
334. For criticisms of the fairness of current state postconviction remedies see, for example, Primus, supra note 51, at 710-13, criticizing state review of claims of ineffective assistance of counsel; Steiker, supra note 158, at 343-44, diagnosing state postconviction remedies that deny counsel and/or effective hearings as "continu[ing] primarily to frustrate rather than advance enforcement of federal rights";
335. Stevenson, supra note 76, at 360, arguing that states have not "provide[d] the kind of review that the AEDPA assumes when it requires federal judges to defer to state court rulings and findings or otherwise protects state court judgments";
336. and Williams, supra note 76, at 932, denouncing Texas postconviction processes for, inter alia, failure to provide competent counsel or resolve factual disputes with evidentiary hearings, allowing prosecutors to write findings of fact, and producing decisions "without oral arguments, written opinions or any meaningful substantive review of most of the petitions presented."
337. See, e.g., 1 WILKES, supra note 186, § 3:19, at 60-61 (noting Alabama law regarding access to evidentiary hearings);
338. id. § 5:18, at 167 (Arizona law);
339. id. § 6:17, at 229-30 (Arkansas law);
340. id. § 7:2, at 307 (California law).
341. Brennan, supra note 24.
342. Id. at 439-41.
343. Difficult issues of timing, retroactive effect, and application of AEDPA's rules (such as the statute of limitations) would arise in connection with such a decision, but are beyond the scope of this Essay to address.
344. See supra note 188;
345. Russell S. Cook, In Pursuit of Justice: The Right To Appeal a Life Sentence or Its Equivalent in West Virginia, W. VA. LAW., Oct. 2002, at 18, 18-19 (reporting that only New Hampshire and West Virginia do not provide intermediate appeal of right);
346. see also MICH. COMP. LAWS ANN. § 770.3(d) (West 2006) ("All appeals from final orders and judgments based upon pleas of guilty or nolo contendere shall be by application for leave to appeal."). Under our approach, the states may also keep, or adopt, reasonable procedural rules for raising and preserving claims of error for review after conviction (for example, "plain error" and waiver rules, forfeiture of pretrial and guilt-related claims after a guilty plea, filing deadlines, filing fees, retroactivity rules, and limits on successive petitions). Review of nonrecord claims, as well as innocence claims, may be limited to defendants who are still in custody at the time of filing (a historic limitation on the habeas remedy), and those convicted of misdemeanors might not be afforded access to review at all. Evidentiary hearings may be granted at the discretion of the court, and counsel need not be required following direct appeal. Reasonable limitations on the review of innocence claims may be imposed, such as requirements of due diligence and probable materiality (for example, cases in which identity was contested at trial). None of these variations would so dramatically alter the basic attributes of state review proceedings that the Supreme Court would need to demand a more rigorous "substitute" under the Suspension Clause.
347. Indeed, early in the process of thinking about some of these issues we explored this possibility, along with others that we have subsequently rejected. See Nancy J. King & Joseph L. Hoffmann, The 2008 James Otis Lecture: Envisioning Post-conviction Review for the Twenty-First Century, 78 Miss. L.J. 433 (2008).
348. Wainwright v. Sykes, 433 U.S. 72, 81 (1977).
349. For example, a district court might receive a habeas petition containing the following four claims: (1) a claim of factual innocence, supported by a proffer of newly discovered evidence; (2) a claim of a Miranda violation in connection with the police investigation; (3) a claim of ineffective assistance of counsel at trial; and (4) a claim that our proposed new habeas statute, which effectively bars the Miranda and ineffective assistance claims, violates the Suspension Clause. As a threshold jurisdictional matter, the district court would have to rule on the Suspension Clause claim. Resolution of that claim would require the court to apply Boumediene's context-specific analysis to the existing review provided for the federal constitutional claims in the petitioner's state. If the court rejected the Suspension Clause claim, it could quickly dispose of the Miranda and ineffective assistance claims as not cognizable under the new version of the writ. Finally, the court would have to consider whether the petitioner's proffer of new evidence might possibly meet the strict standard for innocence claims set out in the new statute.
350. Swain v. Pressley, 430 U.S. 372, 384 (1977) (Burger, C.J., concurring) ("The sweep of the Suspension Clause must be measured by reference to the intention of the Framers and their understanding of what the writ of habeas corpus meant at the time the Constitution was drafted.").
351. See Steiker, supra note 167, at 868 (noting that Reconstruction Congress expanded scope of habeas to state criminal proceedings).
352. Innocence commissions with fact-finding and investigatory power are a promising alternative. The idea of an "innocence commission" is relatively new in the United States, having been implemented in only six states. Brandon L. Garrett, Claiming Innocence, 92 MINN. L. REV. 1629, 1714 & n.412 (2008). This approach to handling posttrial innocence claims has been used with some success in Canada and Great Britain.
353. Id. at 1714-15.