A structural vision of habeas corpus

California Law Review

Volumn 98, Issue 1, 2010, Pages 1-57

  Primus, Eve Brensike ^a  

^a UNIVERSITY OF MICHIGAN LAW SCHOOL   (United States)

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EID: 77952723408     PISSN: 00081221     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (514)

1. See, e.g., Joseph L. Hoffmann & Nancy J. King, Rethinking the Federal Role in State Criminal Justice, 84 N.Y.U. L. REV. 791, 793 (2009) (arguing that the system has failed);
2. Larry W. Yackle, State Convicts and Federal Courts: Reopening the Habeas Corpus Debate, 91 CORNELL L. REV. 541, 542, 553 (2006) (pronouncing the federal habeas corpus system a disaster);
3. Mareia Coyle, Congress Looks at More Limits on Habeas, NAT'L L.J., July 25, 2005, at 18
4. (quoting Senator Jon Kyi's statement that "[t]en years [after the most recent habeas corpus legislation], things have gotten worse, not better").
5. Pursuant to 28 U.S.C. §2254 (2006), state prisoners may file habeas corpus petitions in federal court challenging the constitutionality of their detentions and requesting release from confinement.
6. Yackle, supra note 1, at 542.
7. Id. at 553
8. (quoting Larry W. Yackle, The Figure in the Carpet, 78 TEX. L. REV. 1731, 1756 (2000)).
9. Hoffmann & King, supra note 1, at 816.
10. Andrew Hammel, Diabolical Federalism: A Functional Critique and Proposed Reconstruction of Death Penalty Federal Habeas, 39 AM. CRIM. L. REV. 1, 42 (2002).
11. See NANCY J. KING ET AL., FINAL TECHNICAL REPORT: HABEAS LITIGATION IN U.S. DISTRICT COURTS: AN EMPIRICAL STUDY OF HABEAS CORPUS CASES FILED BY STATE PRISONERS UNDER THE ANTITERRORISM AND EFFECTIVE DEATH PENALTY ACT OF 1996, at 60-63 (2007), available at http://www.ncjrs.gov/pdffiles1/nij/grants/219559.pdf [hereinafter "KING REPORT"] (documenting the long processing times and noting that over 40 percent of noncapital cases are disposed of without reaching the merits of any claim).
12. See 28 U.S.C §2254(d) (2006).
13. See KING REPORT, supra note 6, at 59, 62.
14. See, e.g., McCleskey v. Zant, 499 U.S. 467, 491 (1991) (discussing the "erosion of memory" that happens with the passage of time in habeas cases);
15. Karen J. Mathis et al., Public Service Deserves Public Support, THE CHAMPION, June 2007, at 38 (discussing the high turnover rates in prosecutor and public defender offices).
16. See NAT'L LEGAL AID & DEFENDER ASS'N, "A RACE TO THE BOTTOM," EVALUATION OF THE TRIAL-LEVEL INDIGENT DEFENSE SYSTEMS IN MICHIGAN, EXECUTIVE SUMMARY, at ii (2008) [hereinafter RACE TO THE BOTTOM]. Minnesota, Kentucky, Florida, Georgia, and Louisiana also routinely deny indigent defendants access to adequate trial representation in violation of the Sixth Amendment right to counsel. See discussion infra Section II.B.1.
17. See IDAHO CODE ANN. §19-2719(5)(b) (2008) (requiring any challenge to a capital conviction or sentence to be brought within forty-two days of the imposition of the capital sentence and not permitting a successive petition for any claim that "alleges matters that are ... impeaching"). Alabama has similar rules.
18. See infra Section 1I.B.3. As I explain infra Section II.B.3,
19. these rules violate defendants' due process rights under Brady v. Maryland, 373 U.S. 83 (1963).
20. Specifically, the appellate courts repeatedly default federal claims by holding that criminal defendants failed to lodge contemporaneous objections to impermissible evidence even though explicit, timely objections to the evidence are clear on the face of the trial record. See cases collected infra notes 116 & 117.
21. See infra Section II.B for further discussion of states' systemic violations of criminal defendants' rights.
22. See, e.g., Brandon L. Garrett, Aggregation in Criminal Law, 95 CALIF. L. REV. 383, 401-404 (2007) (discussing systemic violations of some criminal procedure rights);
23. Yackle, supra note 1, at 556-557 (recognizing the prevalence of right-to-counsel violations).
24. See sources collected supra notes 1-5.
25. See infra Part I.
26. See Richard H. Pildes, Why Rights Are Not Trumps: Social Meanings, Expressive Harms, and Constitutionalism, 27 J. LEGAL STUD. 725 (1998) (illustrating how the assignment of rights to individuals functions to limit and structure governmental processes).
27. See id.
28. See Rebecca L. Brown, Separated Powers and Ordered Liberty, 139 U. PA. L. REV. 1513 (1991).
29. See Heather K. Gerken, Understanding the Right to an Undiluted Vote, 114 HARV. L. REV. 1663 (2001);
30. see also Samuel Issacharoff & Pamela S. Karlan, Standing and Misunderstanding in Voting Rights Law, 111 HARV. L. REV. 2276, 2292 (1998) (showing how the assignment of rights to individual voters shapes election law at the collective or structural level).
31. See, e.g., Yackle, supra note 3.
32. See Gary Peller, In Defense of Federal Habeas Corpus Relitigation, 16 HARV. C.R.C.L. L. REV. 579, 690-691 (1982).
33. Others, who liken federal habeas corpus review to a form of appeal to the federal courts, would employ appellate standards of deference when reviewing a state court criminal conviction.
34. See, e.g., James S. Liebman, Apocalypse Next Time?: The Anachronistic Attack on Habeas Corpus/Direct Review Parity, 92 COLUM. L. REV. 1997 (1992);
35. Barry Friedman, A Tale of Two Habeas, 73 MINN. L. REV. 247 (1988).
36. See Henry J. Friendly, Is Innocence Irrelevant? Collateral Attack on Criminal Judgments, 38 U. CHI. L. REV. 142 (1970).
37. See John C. Jeffiies, Jr. & William J. Stuntz, Ineffective Assistance and Procedural Default in Federal Habeas Corpus, 57 U. CHI. L. REV. 679, 691-692 (1990).
38. See Paul M. Bator, Finality in Criminal Law and Federal Habeas Corpus for State Prisoners, 76 HARV. L. REV. 441 (1963).
39. See, e.g., Hammel, supra note 5, at 67 (arguing for a coercive quid-pro-quo model in which the state can obtain expedited, deferential federal habeas review if it shows that there was a full and adequate hearing in state court);
40. Steven Semeraro, A Reasoning-Process Review Model for Federal Habeas Corpus, 94 J. CRIM. L. & CRIMINOLOGY 897, 927-928 (2004) (arguing for a reasoning-process review model in which the federal court considers only the state court decisionmaking process and asks whether the state court cited the relevant federal law and weighed the appropriate factors when issuing its decision).
41. See, e.g., Brian M. Hoffstadt, How Congress Might Redesign a Leaner, Cleaner Writ of Habeas Corpus, 49 DUKE L.J. 947 (2000).
42. See Hoffmann & King, supra note 1, at 793, 796-797
43. KING REPORT, supra note 6.
44. Hoffmann & King, supra note 1, at 819. They exempt from their proposal those who have never been convicted, those who claim they are in custody in violation of a new rule of constitutional law made retroactive to cases on collateral review by the Supreme Court, those who claim they are innocent, and those sentenced to death who want to challenge either the constitutionality of the death sentence or meir eligibility to receive a death sentence.
45. See id. at 819-821
46. See id. at 797, 823-833
47. See id. at 797;
48. see also PAUL D. CARRINGTON ET AL., JUSTICE ON APPEAL 106 (1976);
49. James S. Liebman, Opting for Real Death Penalty Reform, 63 OHIO ST. L.J. 315, 333-42 (2002);
50. Paul H. Robinson, Proposal and Analysis of a Unitary System for Review of Criminal Judgments, 54 B.U. L. REV. 485, 499-500 (1974).
51. For example, routine misinterpretations of federal law by state court judges would no longer be cognizable on habeas. State procedural rules that routinely deprive criminal defendants of the opportunity to raise federal challenges would not be subject to challenge in habeas proceedings. And prosecutorial misconduct claims would not be cognizable absent a demonstration of actual innocence.
52. See infra Section II.B. (explaining the prevalence of these systemic problems).
53. See Yackle, supra note 1, at 553 (acknowledging that "everyone recognizes that the Court is no longer a conventional court of error with me duty and responsibility to catch and correct mistakes of federal law made by courts below"-in part because the Court "cannot manage the load").
54. The state's intent when it errs is irrelevant. States are often inattentive to federal constitutional rights for structural reasons related to their dockets and the limited resources available to them.
55. See discussion infra Section II.B.1. As a result, many systemic state problems are created unintentionally. These routine violations are often the most pernicious and should not escape federal review merely because the state did not intend to engage in a practice that violates the federal constitutional rights of its defendants.
56. Cf. Batson v. Kennedy, 476 U.S. 79, 96-97 (1985) (noting mat the number of strikes that will lead to an inference of discrimination is going to depend on the number and type of people in the particular jury pool).
57. It does not matter whether the criminal procedure right at issue arises frequently or infrequently across the total number of criminal cases. If there is an issue that only arises in 10 percent of criminal cases, but every time it does, the state judge violates the defendants' constitutional rights, the state error is a systemic one. Similarly, the magnitude of the particular error itself is irrelevant. It should not matter if a state routinely provides ineffective trial counsel or routinely denies counsel altogether to defendants who are entitled to counsel. Both are examples of systemic problems, regardless of which is perceived of as a "worse" violation of the Sixth Amendment right.
58. See discussion infra Part IV.
59. -28 U.S.C. §2254 (2006).
60. Id. at §§2241, 2255.
61. See, e.g., David Luban, Lawfare and Legal Ethics in Guantánamo, 60 STAN. L. REV. 1981 (2008);
62. Jenny S. Martinez, Process and Substance in the "War on Terror," 108 COLUM. L. REV. 1013 (2008);
63. Dimitri D. Portnoi, Note, Resorting to Extraordinary Writs: How the All Writs Act Rises to Fill the Gaps in the Rights of Enemy Combatants, 83 N.Y.U. L. REV. 293 (2008).
64. In 2003 and 2004, there were a total of 46,414 habeas petitions filed in noncapital cases and nearly 37,000 of them were filed by state prisoners. See Administrative Office of the Courts, Judicial Business of the U.S. Courts, 2004 Annual Report of the Director, tbl.C-2 (reporting that 23,344 habeas petitions were filed in federal district courts in 2004 and 23,070 were filed in 2003);
65. NANCY J. KING ET AL., EXECUTIVE SUMMARY: HABEAS LITIGATION IN U.S. DISTRICT COURTS: AN EMPIRICAL STUDY OF HABEAS CORPUS CASES FILED BY STATE PRISONERS UNDER THE ANTITERRORISM AND EFFECTIVE DEATH PENALTY ACT OF 1996, at 2 (2007) (explaining that nearly 37,000 noncapital habeas cases were filed by state prisoners in federal district courts in 2003 and 2004).
66. In this respect, I agree with other scholars who have argued that capital and noncapital habeas corpus systems should be treated differently. See, e.g., Hoffmann & King, supra note 1, at 821;
67. Yackle, supra note 1, at 542.
68. See 28 U.S.C. §2254 (2006).
69. See, e.g., Prigg v. Pennsylvania, 41 U.S. 539, 619 (1842);
70. see also 1 WILLIAM BLACKSTONE, COMMENTARIES *137 (referring to the writ of habeas corpus as the "stable bulwark of our liberties").
71. See Joseph L. Hoffmann & William J. Stuntz, Habeas After the Revolution, 1993 SUP. CT. REV. 65, 67, 77 (discussing the criminal procedure revolution in the 1960s and 1970s and the ways in which it broadened the scope of federal habeas review of state criminal convictions).
72. See JIM THOMAS, PRISONER LITIGATION: THE PARADOX OF THE JAILHOUSE LAWYER 96, 99 (1988) (noting that state prisoners filed 871 habeas corpus petitions in federal courts in 1960 whereas prisoners filed 9,063 such petitions in 1970).
73. See, e.g., Daniels v. Allen, 344 U.S. 443, 446 (1953) (opinion of Frankfurter, J.) (noting that "State adjudication of questions of law cannot, under the habeas corpus statute, be accepted as binding [because] it is precisely these questions that the federal judge is commanded to decide");
74. see also James S. Liebman, The Overproduction of Death, 100 COLUM. L. REV. 2030, 2035-2036 (2000) (explaining how the Supreme Court's decisions in the 1960s "deputize[d] the entire federal judiciary" to use habeas to enforce recently expanded criminal procedure rights).
75. See William J. Stuntz, The Uneasy Relationship Between Criminal Procedure and Criminal Justice, 107 YALE L.J. 1, 24-25 (1997).
76. See THOMAS, supra note 48, at 96, 99.
77. See, e.g., Stone v. Powell, 428 U.S. 465, 494 (1976) (holding that, "where the State has provided an opportunity for full and fair litigation of a Fourth Amendment claim, a state prisoner may not be granted federal habeas corpus relief on the ground mat evidence obtained in an unconstitutional search or seizure was introduced at his trial" (footnotes omitted)).
78. See, e.g., Rose v. Lundy, 455 U.S. 509, 510, 522 (1982) (requiring state prisoners to exhaust all claims for relief in the state courts before presenting those claims to the federal courts);
79. Wainwright v. Sykes, 433 U.S. 72, 87 (1977) (holding that a state prisoner whose federal claim is not heard in state court due to his failure to comply with an independent and adequate state procedural rule will not have that claim considered in federal court unless he can show cause and prejudice to bypass the procedural default).
80. See Hammel, supra note 5, at 2 (describing the Burger Court's "retrenchment in habeas review" and stating that "[t]he convergence between the doctrines of exhaustion and procedural default now permits states to render claims permanently unreviewable ....").
81. See, e.g., Pennsylvania v. Finley, 481 U.S. 551, 555 (1987);
82. Murray v. Giarratano, 492 U.S. 1, 9-10(1989).
83. See, e.g., Teague v. Lane, 489 U.S. 288, 295-296 (1989) (holding that a new rule will generally not apply retroactively to cases that were already final and on collateral review at the time the rule was adopted).
84. See, e.g., McCleskey v. Zant, 499 U.S. 467, 489-490 (1991) (explaining that federal courts should refuse to entertain successive petitions whenever the claims raised in them could have been raised earlier, regardless of whether the failure to raise them earlier was a deliberate choice).
85. -28 U.S.C. §§2241-2266 (2006).
86. Id. §2244(d)(1).
87. Id. §2254(d)(1).
88. See Williams v. Taylor, 529 U.S. 362, 410-11 (2000) (emphasizing that "an unreasonable application of federal law is different from an incorrect application of federal law" and holding that a federal habeas court may not issue a writ simply because it believes the state court erred; rather, the error has to be an unreasonable one).
89. See Margo Schlanger, Inmate Litigation, 116 HARV. L. REV. 1555, 1638 (2003) (noting that, between 1996 and 2001, the number of federal habeas petitions that state inmates filed grew by 50 percent, even though the state prison population increased by only 20 percent).
90. Hoffmann & King, supra note 1, at 806.
91. See KING REPORT, supra note 6.
92. See id. at 60-63 (explaining that over 40 percent of habeas petitions are dismissed without considering any claim on the merits);
93. see also Garrett, supra note 14, at 445-446 (noting that current habeas law does not effectively sift baseless claims from meritorious ones).
94. See Hoffmann & King, supra note 1, at 809.
95. See id. at 810-815
96. See Wayne R. LaFave et al., 1 Criminal Procedure §1.10(c) (3d ed. 2003) (describing the caseload problems in state courts).
97. See Townsend v. Sain, 372 U.S. 293, 312 (1963) (holding that "the power of inquiry on federal habeas corpus is plenary" and that, "[t]herefore, where an applicant for a writ of habeas corpus alleges facts which, if proved, would entitle him to relief, the federal court to which the application is made has the power to receive evidence and try the facts anew");
98. -28 U.S.C. § 2254(e)(2) (2006) (setting forth conditions under which federal habeas courts may conduct an evidentiary hearing).
99. Cf. Steven Semeraro, Two Theories of Habeas Corpus, 71 BROOK. L. REV. 1233, 1248 (2006) ("Elected state judges may be more likely to deny constitutional challenges if they know that life-tenured federal judges are waiting to clean up the mess.").
100. See Semeraro, supra note 27, at 921.
101. See sources collected supra note 1;
102. see also Brecht v. Abrahamson, 507 U.S. 619, 649 (1993) (White, J., dissenting) ("Our habeas jurisprudence is taking on the appearance of a confused patchwork. . . .");
103. Thanassis Cambanis, Some Oppose Antiterror Law's Time Limit on Review, BOSTON GLOBE, NOV. 29, 2002, at B1 (noting that many judges are criticizing current habeas legislation and further noting that Senator Edward Kennedy is in favor of reforms to restore full habeas corpus rights to state prisoners).
104. Cf. Philip Halpern, Federal Habeas Corpus and the Mapp Exclusionary Rule After Stone v. Powell, 82 COLUM. L. REV. 1, 31-33 (1982) (suggesting that federal courts consider whether state courts systematically err in Fourth Amendment cases when deciding whether the state courts have provided litigants with an opportunity for full and fair litigation of Fourth Amendment claims).
105. See infra Section II.C;
106. see also sources collected supra notes 17-20.
107. Paul D. Halliday & G. Edward White, The Suspension Clause: English Text, Imperial Contexts, and American Implications, 94 VA. L. REV. 575, 586 (2008).
108. See THOMAS, supra note 48, at 75.
109. See Boumediene v. Bush, 128 S. Q. 2229, 2244-2245 (2008) ("[A]t the outset [habeas corpus] was used to protect not the rights of citizens but those of the King and his courts. . . . [T]he writ... was in its earliest use a mechanism for securing compliance with the King's laws.. . . [B]y issuing the writ of habeas corpus common-law courts sought to enforce the King's prerogative to inquire into the authority of a jailer to hold a prisoner.").
110. See THOMAS, supra note 48, at 75;
111. Bator, supra note 26.
112. HABEAS CORPUS ACT OF 1867, ch. 28, § 1, 14 Stat 385 (current version at 28 U.S.C § 2241 (2006)).
113. See U.S. CONST, amend. XIV, §1;
114. -28 U.S.C. §1331 (2006);
115. -28 U.S.C. § 1441 (2006);
116. see also George C Thomas III, When Constitutional Worlds Collide: Resurrecting the Framers ' Bill of Rights and Criminal Procedure, 100 MICH. L. REV. 145, 187 (2001).
117. See, e.g., William J. Brennan, Jr., Federal Habeas Corpus and State Prisoners: An Exercise in Federalism, 7 UTAH L. REV. 423, 426 (1961) ("In 1867, Congress was anticipating Southern resistance to Reconstruction and to the implementation of the post-war constitutional Amendments.");
118. Erwin Chemerinsky, Thinking About Habeas Corpus, 37 CASE W. RES. L. REV. 748, 752 (1987) (describing Congressional concern about Southern state policies). The Committee on Reconstruction issued an 800-page report early in 1866 detailing the many ways in which the state of Kentucky was engaging in systemic civil rights violations-including continuing to keep men, women, and children enslaved.
119. See Clark D. Forsythe, The Historical Origins of Broad Federal Habeas Review Reconsidered, 70 NOTRE DAME L. REV. 1079, 1112 (1995)
120. (citing and discussing REPORT OF THE JOINT COMMITTEE ON RECONSTRUCTION, H.R. REP. NO. 39-130 (1866)). When Representative William Lawrence proposed the Habeas Corpus Act of 1867 in the House, he specifically mentioned the need to give Judge Ballard, a federal judge known for enforcing civil liberties, the power to enforce civil liberties in Kentucky.
121. See CONG. GLOBE, 39th Cong., 1st Sess. 4151 (1866) (statement of Rep. Lawrence).
122. CONG. GLOBE, 40th Cong., 2d Sess. 2096 (1868);
123. see also id. at 2095, 2115, 2127, 2165.
124. See David McCord, Visions of Habeas, 1994 BYU L. REV. 735, 739 ("[T]he Reconstruction Congress ... authorized federal courts to issue writs of habeas corpus on behalf of state prisoners because of distrust of state criminal justice systems.");
125. see also Ann Woolhandler, Demodeling Habeas, 45 STAN. L. REV. 575, 604-611 (1993) (explaining that nineteenth century constitutional litigation was focused on systemic rather than random individual illegality).
126. See Note, Multiparty Federal Habeas Corpus, 81 HARV. L. REV. 1482, 1491 n.64 (1968) [hereinafter Multiparty Habeas]. Courts often used one writ to establish jurisdiction over many people. For example, one writ was used to summon all of the members of a jury.
127. See ROBERT S. WALKER, THE CONSTITUTIONAL AND LEGAL DEVELOPMENT OF HABEAS CORPUS AS THE WRIT OF LIBERTY 15 & nn.38-40 (1960).
128. The Acts of Aug. 29, 1842 and March 2, 1833 both spoke in terms of "person or persons" or "prisoner or prisoners" obtaining "his or their writ."
129. See Multiparty Habeas, supra note 84, at 1491 & n.63. This was changed from the plural to the singular, without comment, when several habeas acts, some of which had been plural and some of which had been singular, were consolidated for codification in 1873.
130. See id. at 1491.
131. See RANDY HERTZ & JAMES S. LIEBMAN, 2 FEDERAL HABEAS CORPUS PRACTICE AND PROCEDURE §11.4(b) (5th ed. 2001) (collecting cases);
132. Garrett, supra note 14, at 388 n.15 (noting that for two decades federal courts certified habeas class actions). For a discussion of why habeas class actions were not effective in remedying systemic state problems,
133. see discussion infra Section V.C.3
134. See Calderon v. Ashmus, 523 U.S. 740 (1998);
135. see also Garrett, supra note 14, at 408 (discussing how the Supreme Court's ruling in Calderón led to the demise of habeas class actions).
136. See, e.g., Lee v. Kemna, 534 U.S. 362 (2002);
137. James v. Kentucky, 466 U.S. 341 (1984).
138. See, e.g., Lee v. Kemna, 534 U.S. 362 (2002).
139. See, e.g., Catherine T. Struve, Direct and Collateral Federal Court Review of The Adequacy of State Procedural Rules, 103 COLUM. L. REV. 243, 262-263 (2003) (collecting cases that explain how the inconsistency branch of adequacy review typically results in facial invalidation of the state procedural rule and is motivated by a concern that the state is discriminating against the federal right);
140. see also id. at 264-65 (collecting cases in which the undue burden branch of adequacy review has invalidated a state procedural rule across cases);
141. see also Breechen v. Reynolds, 41 F.3d 1343, 1364 (1994) (10th Cir. 1994) (declaring an Oklahoma procedural rule inadequate because it requires defendants to raise trial attorney ineffectiveness challenges on direct appeal while simultaneously not giving them an opportunity for additional fact-finding at that stage).
142. See, e.g., Wainwright v. Sykes, 433 U.S. 72 ( 1977).
143. See HERTZ & LIEBMAN, supra note 86, §26.3(b) (collecting cases).
144. In theory, adequacy determinations and findings of cause to excuse procedural defaults could put an end to many systemic state procedural violations by encouraging states to change offensive procedural rules. In practice, however, this does not happen. As an initial matter, there is the problem of time. The exhaustion and procedural default requirements entangle criminal defendants in years of state court review before they are permitted to file federal habeas petitions. See KING REPORT, supra note 6. Consequently, even if a federal judge ignores a state procedural default and grants habeas relief, it often comes so long after the original state violation that there is little deterrent effect on the offending state.
145. See Stone v. Powell, 428 U.S. 465, 493 (1976) (discussing the "dubious assumption" that law enforcement authorities are deterred from committing Fourth Amendment violations out of fear that the conviction might be overturned in collateral proceedings);
146. Hammel, supra note 5, at 79 ("Even when post-conviction lawyers win reversals of convictions, those reversals come so long after the original trial that any tendency they might have to deter wrongdoing by state officials is attenuated."). Next, there is a problem of scale. Federal grants of habeas relief are too rare to provide the states with any incentive to change their offensive procedures.
147. See supra notes 6-8 & accompanying text. There is little threat that the state's criminal convictions will be disrupted if the state does not change its ways. As a result, states often ignore federal habeas rulings that their procedural rules are inadequate and continue to apply the offending rules.
148. See, e.g., Richie v. Sirmons, No. 98-CV-482, 2008 U.S. Dist. LEXIS 41273 (N.D. OkIa. May 21, 2008) (noting that the state courts still improperly default ineffective assistance of trial counsel claims even after federal courts have held that their defaults are inadequate);
149. see also infra note 117 and accompanying text (noting that, despite several federal findings that the state is misapplying its contemporaneous objection rule, New York courts continue to engage in this practice).
150. See sources collected supra note 81.
151. See, e.g., Robert J. Pushaw, Jr., A Neo-Federalist Analysis of Federal Question Jurisdiction, 95 CALIF. L. REV. 1515, 1517 (2007) ("Only Article III judges, who unlike their state counterparts are always politically independent and experts in federal law, can be trusted ultimately to expound that law accurately and guarantee its supremacy and uniformity.");
152. Martin H. Redish, Reassessing the Allocation of Judicial Business Between State and Federal Courts: Federal Jurisdiction and "The Martian Chronicles," 78 VA. L. REV. 1769, 1787 & n. 104 (1992) (noting that federal judges should shape and enforce federal law because of their "presumed expertise... in interpreting federal law" and "sensitivity to the importance of federal rights").
153. See, e.g., John F. Preis, Reassessing the Purposes of Federal Question Jurisdiction, 42 WAKE FOREST L. REV. 247 (2007);
154. Gil Seinfeld, The Federal Courts as a Franchise: Rethinking the Justifications for Federal Question Jurisdiction, 97 CALIF. L. REV. 95 (2009).
155. See Hoffmann & King, supra note 1, at 795;
156. see also id. at 796 (noting that the "structural and systemic problems in state criminal justice that led to widespread deprivations of federal rights ... have largely dissipated.").
157. See Garrett, supra note 14, at 401-04;
158. see also Yackle, supra note 1, at 556-557
159. See, e.g., People v. Brendlin, 136 P.3d 845 (Cal. 2006),
160. rev'd sub nom. Brendlin v. California, 127 S. Ct. 2400 (2007). In that case, the California court held that, as a matter of law, car passengers have no standing to assert Fourth Amendment challenges when the vehicles in which they are riding get pulled over, because the passengers are not seized as a constitutional matter. 136 P.3d at 855. The United States Supreme Court reversed, emphasizing that the California court had ignored the governing federal test for determining when a person is seized under the Fourth Amendment and had introduced an element of subjectivity into me analysis that had been rejected by the Supreme Court. 127 S. Q. at 2408. Thus, California's legal interpretation of the governing federal standard had improperly diluted defendants' Fourth Amendment rights.
161. RACE TO THE BOTTOM, supra note 10, at ii.
162. Id. at iii.
163. Readers may not agree that all of the examples I provide involve violations of federal constitutional rights. Any right is subject to more and less expansive interpretations. These examples are not exhaustive. They are merely intended to illustrate the existence of a problem. The scope of the problem is something that the federal courts would address if federal habeas review were reconfigured to focus on systemic challenges.
164. See supra note 10;
165. see also Strickland v. Washington, 466 U.S. 668, 686 (1984) (describing the constitutional right to effective trial counsel).
166. See Georgia N. Vagenas, Review of National Indigent Defense Developments, 11 DIALOGUE 17 (2007).
167. See Louisiana Overhauls Public-Defender System (NPR radio broadcast Sept. 14, 2007), transcript available at http://www.npr.org/templates/story/story. php?storyId=14412362.
168. Public Defenders in Minnesota, Kentucky, Florida, and Georgia are unable to handle all of their cases due to budget constraints. See Scott Michels, Facing Budget "Crisis, " Public Defenders May Refuse Cases, ABC NEWS, June 13, 2008, http://abcnews.go.com/ print?id=5049461. Georgia recently cut the hourly rate that it pays appointed counsel in capital cases, fired forty-one employees, and dismantled a number of offices.
169. See Vagenas, supra note 104, at 19. Virginia places a $120 cap on the fee that it will pay to an attorney who handles a juvenile delinquency case, regardless of the severity of the charges.
170. See id. at 17. As of 2007, attorneys can apply for a fee waiver to get additional money, but the fee waiver program has not been adequately funded.
171. See VIRGINIA FAIR TRIAL PROJECT, PROGRESS REPORT: VIRGINIA'S PUBLIC DEFENSE SYSTEM (2007). In other states, public defenders are routinely forced to handle more than a thousand criminal cases a year -almost three times the number that the American Bar Association has concluded one attorney can handle effectively.
172. See, e.g., BRUCE A. MYERS, OFFICE OF LEGISLATIVE AUDITS, DEP'T OF LEGISLATIVE SERVS., MD. GEN. ASSEMBLY, PERFORMANCE AUDIT REPORT: OFFICE OF THE PUBLIC DEFENDER 15 (2001), available at http://www.ola.state.md.us/Reports/ Performance/PubDefen.pdf (noting that public defenders in Baltimore were handling 1,163 cases per year);
173. Vagenas, supra note 104, at 19 (emphasizing that, in 2006, the Knox County Public Defender Office in Tennessee was appointed nearly 21,000 cases which were handled by only 23 attorneys);
174. see also State v. Peart, 621 So.2d 780, 789 (La. 1993) (describing a Louisiana public defender with more than 700 open cases and noting that "[n]ot even a lawyer with an 'S' on his chest could effectively handle th[at] docket");
175. Eve Brensike Primus, Structural Reform in Criminal Defense: Relocating Ineffective Assistance of Counsel Claims, 92 CORNELL L. REV. 679, 686-687 (2007) (collecting caseload statistics for different jurisdictions);
176. ABA STANDING COMM. ON LEGAL AID AND INDIGENT DEFENDANTS, TEN PRINCIPLES OF A PUBLIC DEFENSE DELIVERY SYSTEM 5 n.19 (2002), available at http://www.abanet.org/legalservices/downloads/sclaid/indigentdefense/ tenprinciplesbooklet.pdf (noting the figures of the National Advisory Commission on Criminal Justice Standards and Goals, Task Force on Courts, which provide for a maximum caseload per year of 150 felonies, 400 misdemeanors, 200 juvenile cases, 200 mental health cases, or 25 appeals).
177. See OKLA. STAT. tit. 22, ch. 18, App. R. 3.11 (2003).
178. See id.
179. See, e.g., Hooks v. Ward, 184 F.3d 1206 (10th Cir. 1999).
180. See. e.g., McCracken v. State, 946 P.2d 672, 676 (Okla. Crim. App. 1997) (defaulting defendant's ineffective assistance of counsel claim for failure to raise it on direct appeal even though appellate attorney was the same as trial attorney);
181. Neill v. State, 943 P.2d 145, 148 (Okla. Crim. App. 1997) (same).
182. See McCracken, 946 P.2d at 676;
183. Neill, 943 P.2d at 148. Sometimes, there can be systemic problems even when the trial and appellate counsel are different.
184. See, e.g., Cannon v. Mullin, 383 F.3d 1152, 1173-1174 (10th Cir. 2004) (suggesting that the Oklahoma appellate defenders have a policy of not raising ineffectiveness challenges on direct appeal when the trial attorney was a public defender).
185. See English v. Cody, 146 F.3d 1257, 1264 n.7 (10th Cir. 1998) (noting that, in a seventeen-month time period, the Oklahoma Court of Criminal Appeals affirmed no fewer than twenty-four postconviction capital cases raising ineffective assistance of trial counsel claims and that not one remand was granted in those cases).
186. Oklahoma provides trial counsel to indigent defendants in three different ways: (1) through public defender offices; (2) through contracts under which private defense attorneys agree to be paid a flat fee to handle any and all indigent defendants who pass through the system; or (3) by paying private counsel an hourly rate (with fee caps) to take on the cases. OKLAHOMA INDIGENT DEFENSE SYSTEM ANNUAL REPORT 8 (2007), available at http://www.ok.gov/OIDS/ documents/2007%20Annual%20Report.pdf. For a discussion of why all three of these systems create structural trial attorney ineffectiveness problems,
187. see generally Primus, supra note 106, at 686-88. For a discussion of the ways in which Oklahoma specifically is underprotecting the right to counsel,
188. see Oklahoma Indigent Defense System's Struggles Continue, 2 THE SPANGENBURG REPORT, 1996, at 11-12, available at http://www.spangenberg group.com/newsletter/TSG-vol2-issue4.pdf.
189. Oklahoma is not the only jurisdiction to have a procedural regime that, in practice, systematically denies defendants an opportunity to raise trial attorney ineffectiveness claims. See, e.g., Hoffmann v. Arave, 236 F.3d 523 (9th Cir. 2001) (explaining that the Idaho statute requiring capital defendants to file any legal or factual challenges to their sentences or convictions within forty-two days of the judgment effectively prevents them from raising ineffectiveness challenges because forty-two days is not long enough to do any investigation or even get the trial transcripts). In New York, on-the-record ineffectiveness claims must be raised on direct appeal, but ineffectiveness claims that rely on evidence outside of the trial record may be raised during state postconviction proceedings.
190. See N.Y. C.P.L.R. §440.10(2)(c) (McKinney 2005). The New York courts, however, routinely bar ineffectiveness challenges raised during postconviction proceedings on the ground that they are on-the-record claims that should have been raised on direct appeal, even when they require factual development outside the record.
191. See Ramsey v. Bennett, No.02CV-5290, 2007 U.S. Dist. LEXIS 45483, at *9-10 (E.D.N.Y. June 21, 2007);
192. Powers v. Lord, 462 F. Supp. 2d 371, 378-79 (W.D.N.Y. 2006);
193. Etoria v. Bennett, 292 F. Supp. 2d 456, 467 (E.D.N.Y. 2003);
194. see also Bradley v. Clark, No.99 C 1785, 2002 U.S. Dist. LEXIS 18490, at *7-16 (N.D. 111. July 22, 2002) (finding a similar state problem in Illinois). And in Michigan, state procedural rules effectively prevent defendants from raising ineffective assistance of appellate counsel claims.
195. See, e.g., Lewis v. Bock, No. 01-10252-BC, 2006 U.S. Dist. LEXIS 4020, at *20-25 (E.D. Mich. Feb. 2, 2006) (ruling that the state courts' interpretation of the Michigan rules to default ineffective assistance of appellate counsel claims for failure to raise them on direct appeal was nonsensical because it required appellate counsel to raise his own effectiveness).
196. See Wilson v. Ozmint, 357 F.3d 461, 466 (4th Cir. 2004);
197. see also supra note 114 (collecting New York cases).
198. See, e.g., Garcia v. Portuondo, 104 Fed. Appx. 776, 780 (2d Cir. 2004) ("Garcia clearly objected on Batson grounds and did so in a manner that unmistakably made his position known to the court.") (internal quotations and ellipses omitted);
199. Cotto v. Herbert, 331 F.3d 217, 246 (2d Cir. 2003) ("Cotto's compliance with New York's preservation rule here was arguably literal, and not just substantial.");
200. Daley v. Artus, No. 03-CV-4109, 2003 U.S. Dist. LEXIS 23428, at *26-27 (E.D.N.Y. Dec. 31, 2003) ("Daley objected repeatedly at trial to specific questions ... by the prosecutor, and at specific points in the prosecutor's summation. . . . Indeed, ... the objections could not have been more 'contemporaneous.' ... I question what else Daley could have done to make his position clear to the trial court.");
201. see also Silverman v. Edwards, 69 Fed. Appx. 489, 491 (2d Cir. 2003) (same);
202. Sanford v. Bürge, 334 F. Supp. 2d 289, 299-300 (E.D.N.Y. 2004) (same). New York is not the only state that misapplies its preservation rules in order to default federal claims.
203. See, e.g., U.S. ex rel. Hardaway v. Young, 162 F. Supp. 2d 1005, 1012 (N.D. III. 2005),
204. rev'd on other grounds, 302 F.3d 757 (7th Cir. 2002).
205. See, e.g., Ojar v. Greene, No. 05-CV-3674, 2008 U.S. Dist. LEXIS 11744, at 24-26 (E.D.N.Y. Feb. 15, 2008);
206. Fong v. Poole, 552 F. Supp. 2d 642, 652 (S.D.N.Y. 2007);
207. Weathers v. Conway, No. 05-CV-139S, 2007 U.S. Dist. LEXIS 59911, at *19-20 (E.D.N.Y. Aug. 9, 2007);
208. Garvey v. Duncan, No.02 Civ. 4208, 2005 U.S. Dist. LEXIS 17499, at *15 (S.D.N.Y. Aug. 9, 2005).
209. JUDITH S. KAYE & JONATHAN LIPMAN, ACTION PLAN FOR THE JUSTICE COURTS, preface (2006) [hereinafter "ACTION PLAN"], available at http://www.nycourts.gov/ publications/pdfs/ActionPlan-JusticeCourts.pdf.
210. Id.
211. Id. at 10.
212. Id. (noting that 72 percent of New York's nearly 2,000 town and village justices are nonlawyers).
213. Id. ("In part because particular record reconstructions have been found to be insufficient on which to conduct appellate review of Justice Court proceedings, the lack of verbatim Justice Court records has raised serious concerns about Justice Court enforcement of litigant rights and compliance with other constitutional, statutory and regulatory directives.") (footnote omitted).
214. -373 U.S. 83 (1963).
215. -405 U.S. 150 (1972);
216. see also United States v. Bagley, 473 U.S. 667 (1985).
217. See, e.g., Garrett, supra note 14, at 401-03 (noting that suppression of evidence in violation of Brady is a frequent cause of capital reversals);
218. see also id. at 423 (describing the repeated misconduct of Oklahoma County District Attorney Robert H. Macy).
219. See Tracey L. Meares, Rewards for Good Behavior: Influencing Prosecutorial Discretion and Conduct with Financial Incentives, 64 FORDHAM L. REV. 851, 909 ( 1995);
220. Richard A. Rosen, Disciplinary Sanctions Against Prosecutors for Brady Violations: A Paper Tiger, 65 N.C L. REV. 693, 702-703 (1987).
221. See, e.g., Thirty-Fifth Annual Review of Criminal Procedure, 35 GEO. L.J. ANN. REV. CRIM. PROC. 1, 360 n.1210 (2006) (collecting cases involving delays ranging from two to thirteen years).
222. See IDAHO CODE §19-2719(5)(b) (2008) (requiring any challenge to a capital conviction or sentence to be brought within forty-two days of the imposition of the capital sentence and not permitting a successive petition for any claim that "alleges matters that are ... impeaching . . .");
223. Row v. State, 21 P.3d 895, 899 (2001) (refusing to allow a Brady claim to move forward because, among other things, the evidence would be "merely impeaching"). Alabama has a similar rule with a one-year limitations period.
224. See ALA. R. CRIM. P. 32.2(c) (imposing a one-year statute of limitations for all postconviction petitions);
225. Barbour v. State, 903 So. 2d 858, 868 (Ala. Crim. App. 2004) (noting that Brady claims are subject to procedural default under Alabama Criminal Procedure Rule 32.2(c) unless they can qualify as "newly discovered" evidence under Rule 32.1(e));
226. ALA. R. CRIM. P. 32.1(e) (excluding newly discovered impeachment evidence from the purview of the rule). As these rules demonstrate, Giglio impeachment material that is discovered more than one year after conviction is statutorily barred from consideration by any Alabama court.
227. See Johnson v. State, No. CR-05-1805, 2007 Ala. Crim. App. LEXIS 178 at *23 (Sept. 28, 2007) ("It is well-settled that newly discovered evidence under [Rule 32.1(e)] allows relief on Brady claims only where '[t]he facts do not merely amount to impeachment evidence.'").
228. See sources collected supra note 126.
229. See ALA. R. CRIM. P. 32.1(e). In Alabama, only defendants who can demonstrate their innocence are entitled to raise delayed Brady claims in the state courts, even though Brady itself clearly extends the right to exculpatory information to the guilty and innocent alike.
230. Id. This is true even if the defendant's delayed discovery of the claim is attributable to the State.
231. See Kyles v. Whitley, 514 U.S. 419, 434 (1995).
232. See id.;
233. see also Strickler v. Greene, 527 U.S. 263, 280 (1999).
234. See sources collected supra notes 1-5.
235. See Fay v. Noia, 372 U.S. 391, 420-22, 426-31 (1963);
236. Peller, supra note 22.
237. See 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, 319-21;
238. Larry W. Yackle, Explaining Habeas Corpus, 60 N.Y.U. L. REV. 991, 992 (1985).
239. See Anthony Amsterdam, Foreword to 1 JAMES S. LIEBMAN & RANDY HERTZ, FEDERAL HABEAS CORPUS PRACTICE & PROCEDURE (3d ed. 1998) ("Unless [a federal] judge is satisfied that s/he can give relief in this case with no (or very little) prospect that other accused or convicted persons will escape punishment, the judge will simply not [grant relief].").
240. See Brown v. Allen, 344 U.S. 443, 537 (1953) (Jackson, J., concurring in the result) ("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").
241. See Semeraro, supra note 70, at 1248 ("Elected state judges may be more likely to deny constitutional challenges if they know that life-tenured federal judges are waiting to clean up the mess.").
242. See Yackle, supra note 1, at 553.
243. See, e.g., Hammel, supra note 5, at 42 ("[a]ny reform, if it is to have a chance of success, must address the felt need to make habeas procedures more streamlined and efficient.").
244. See Bator, supra note 26.
245. Id. at 455.
246. See Semeraro, supra note 27, at 927 ("[P]rocess review . .. does no good if the state decision-maker ignores federal law."). Professor Semeraro argues for a Reasoning-Process Review Model of federal habeas corpus review under which the federal court would consider whether the state court cited the relevant federal law and weighed the appropriate factors when relying on that law to decide a federal constitutional issue.
247. See id. at 927-28. If the state court relied on the correct law and weighed the appropriate factors, the federal court would let the decision stand. If it did not, the federal court would send it back to the state court for a more thorough analysis.
248. See id. Unfortunately, this model, like the Process Model, fails to check substantive systemic violations of criminal procedure rights. A state court that correctly cites the relevant federal law but assigns different weight to the various factors or balances them differently would be insulated from federal review. Thus, a state court could dilute federal constitutional standards as long as it cited the right law and relied on the right factors when doing so. Another variant of the Process Model was offered by Andrew Hammel.
249. See Hammel, supra note 5, at 67. His Coercive Quid-Pro-Quo Model would allow the state to obtain expedited, deferential federal habeas corpus review of a state criminal conviction as long as it could show that there was a full and adequate hearing in state court. Like other process approaches, the Coercive-Quid-Pro-Quo Model ignores substantive systemic state violations.
250. See Friendly, supra note 24;
251. see also Jeffries and Stuntz, supra note 25, at 691-692 (contending that, if such a showing is made, procedural barriers to review should be swept aside so that a possibly innocent person can obtain federal review but that, absent such a showing, there is no reason to excuse a default).
252. One might contend that, for every systemic substantive state violation of a constitutional right, there will be an innocent defendant whose rights are violated. That innocent defendant would then have standing to object on habeas under the Innocence Model. Thus, the federal courts will eventually address all systemic substantive violations through innocence cases. Such an argument, however, assumes that there will be enough innocent people convicted of crimes to ensure the presentation of all types of substantive violations. Moreover, the Innocence Model, like the Full Relitigation Model, does not force the federal courts to focus on systemic state errors and is subject to the same criticisms for that reason. See discussion supra Section U.C.
253. See, e.g., Hoffstadt, supra note 28.
254. -428 U.S. 465 (1976).
255. See, e.g., Stuntz, supra note 50, at 4.
256. They exempt from their proposal those who have never been convicted, those who claim they are in custody in violation of a new rule of constitutional law made retroactive to cases on collateral review by the Supreme Court, those who claim they are innocent, and those sentenced to death who want to challenge either the constitutionality of the death sentence or their eligibility to receive a death sentence. See Hoffmann & King, supra note 1, at 819-821
257. See id. at 797;
258. see also Liebman, supra note 33.
259. See Hoffman & King, supra note 1, at 793.
260. See id. at 806, 810-815
261. At least one other scholar has argued for a deterrence-related theory of federal habeas review. See Evan Tsen Lee, The Theories of Federal Habeas Corpus, 72 WASH U. L.Q. 151 (1994). However, the systemic habeas system proposed in this Article is more likely to deter state courts from violating defendants' rights than the individual-deterrence proposal advocated by Professor Lee. Professor Lee would have federal habeas courts grant relief whenever the likelihood of deterring future state court constitutional violations outweighs the institutional and social costs of granting relief.
262. See id. at 198. He argues for a case-by-case cost-benefit analysis in which the federal court asks, in each case, whether the deterrent function of granting relief is outweighed by the costs.
263. See id. Such a proposal, however, stacks the deck in favor of the costs because the costs are aggregated and the benefits are localized. I would consider deterrence at a metalevel and find that, whenever the error is systemic, it needs to be deterred such that habeas relief should be granted.
264. At times, there have been proposals to expand the federal courts' direct appellate review by having federal courts of appeal review cases immediately after relief is denied by the highest state court as a way of supplementing the United States Supreme Court's direct review jurisdiction. See, e.g., Steiker, supra note 135, at 320-21;
265. Daniel J. Meador, Straightening Out
266. Federal Review of State Criminal Cases, 44 OHIO ST. L.J. 273 (1983). Alternatively, it would be possible to have two different habeas tracks-one for individual errors and another for systemic ones.
267. See Brecht v. Abrahamson, 507 U.S. 619 (1993);
268. see also Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992) (holding that, in order to satisfy Article Ill's standing requirements, a federal litigant must show an injury in fact that is fairly traceable to the challenged action of the defendant and is likely to be redressed by a favorable court decision). A habeas petitioner under the proposed systemic regime would satisfy these Article III requirements. The petitioner would have to show that that the right at issue in the systemic challenge was actually violated in his case such that he was injured; that the violation is fairly traceable to the state and thus caused by the state; and that the error was not harmless such that granting habeas relief would actually redress the problem in his case.
269. See 28 U.S.C. §2244(d) (2006).
270. See id. § 2244(b).
271. See Teague v. Lane, 489 U.S. 288, 295-96 (1989).
272. See Wainwright v. Sykes, 433 U.S. 72, 87 (1977). Given that there would be no exhaustion requirement in the proposed systemic habeas review system, see infra Section III.B., the number of systemic challenges that would be raised in state courts is likely to be small and, as a result, the impact of the procedural default doctrine would be reduced substantially. After all, if a habeas petitioner does not raise a systemic claim in state court, he will not have defaulted by virtue of the way in which the claim was raised. Moreover, as is true in cases of individualized habeas review, the federal court would always be able to entertain challenges to the adequacy of state procedural rules. Because the adequacy of a state procedural rule is a federal question that need not be initially raised in the state courts,
273. see Lee v. Kemna, 534 U.S. 362, 375 (2002), a petitioner's failure to comply with a procedural rule that he alleges creates a systemic procedural due process problem in the state should not bar federal review.
274. See infra Sections III.D & IV.B (discussing the application of the successive petition ban and retroactivity bar to the current proposal). I do not mean to suggest that I agree with the ways in which these procedural doctrines are currently configured; the point is merely that the applicability of these doctrines does not turn on the difference between individual and systemic claims.
275. See 28 U.S.C. §2254(b) (2006).
276. Some might contend that, because an individual petitioner's standing to assert a systemic challenge requires a showing of an individualized, prejudicial harm in his case, there should be an exhaustion requirement vis-à-vis that inquiry. The rationale behind the exhaustion doctrine, however, does not support such a requirement. Exhaustion is designed to prevent unnecessary disruption in state judicial proceedings by encouraging federal courts to wait to interfere until the state courts have had an opportunity to correct the constitutional violation. See Rose v. Lundy, 455 U.S. 509 (1982). When the question is whether the state is systematically violating defendants' constitutional rights, however, the very nature of the claim means that the state courts have had numerous opportunities to correct the error and have failed to do so. The individual petitioner is merely a vehicle through which to raise the claim. Moreover, the federal court does not disrupt state proceedings or provide any relief to the petitioner on the basis of the violation of his individual rights; that showing of a violation merely satisfies a threshold standing requirement. Therefore, an exhaustion requirement would merely the up the federal courts in a complicated procedural inquiry that would delay consideration of the merits.
277. See THOMAS, supra note 48, at 165 (discussing that fear).
278. See 28 U.S.C. § 2254(a) (2006) (requiring custody);
279. Hoffmann & King, supra note 1, at 796 (noting that few defendants can satisfy the custody requirement).
280. See id. at 810.
281. Allowing more defendants to file habeas petitions may lead to an increase in the number of filings. However, because the focus of the federal bench will be on whether the problem asserted is systemic in nature, many more cases will be resolved with each federal ruling. See discussion infra Section III.D. (discussing retroactivity principles that limit the scope of each ruling and explaining the successive petition ban).
282. Cf. 28 U.S.C. § 2255 (2006) (requiring the federal court to grant a defendant's request for a hearing on a postconviction motion "[u]nless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief);
283. Primus, supra note 106, at 708-09 (arguing that appellants should be granted hearings on their ineffective assistance challenges if their pleadings state a colorable claim of ineffectiveness).
284. Cf. Batson v. Kennedy, 476 U.S. 79 (1985) (noting that the number of strikes that will lead to an inference of discrimination is going to depend on the available jury pool).
285. To the extent that a state routinely declares a type of evidence insufficient to support a verdict, it could pose a systemic problem.
286. See infra note 181 & accompanying text.
287. See Halpern, supra note 73, at 33 (noting that federal judges can often detect the systemic nature of an error on the face of the pleadings and state court opinions rendered in a case).
288. See discussion supra Section II.B. 1.
289. See Brandon L. Garrett, Innocence, Harmless Error, and Federal Wrongful Conviction Law, 2005 Wis. L. REV. 35, 100 (discussing the advantages of discovery in § 1983 cases and noting that federal discovery may go a long way toward uncovering and providing the remedy for patterns of error in our criminal justice system).
290. Moreover, some of the costs that states would bear when the new model of habeas was first introduced would decrease over time as technology is integrated into state courts. Admittedly, Oklahoma might now have difficulty determining how many times its judges have granted hearings in response to motions for remand alleging ineffective assistance of counsel. However, answering such questions should become easier as electronic filing becomes more routine. And it is already clear from other contexts that requiring state agencies to collect and maintain records of their practices is both feasible and valuable in monitoring future compliance with federal law. See John C. Jeffries, Jr. & George A. Rutherglen, Structural Reform Revisited, 95 CALIF. L. REV. 1387, 1411-12, 1418-19 (2007) (discussing the value of data collection in the context of federal enforcement actions under 42 U.S.C. § 14141 (2006));
291. Debra Livingston, Police Reform and the Department of Justice: An Essay on Accountability, 2 BUFF. CRIM. L. REV. 815, 839-41 (1999) (same);
292. see also id. at 854-55 (noting that whatever civil liberties costs are attendant upon the maintenance of such records will presumably be more than offset by the records' value).
293. Cf. 28 U.S.C. § 2253 (2006).
294. Cf. Multiparty Habeas, supra note 84 (noting that, if a constitutional claim is raised in the case of one individual and is denied, the question is settled).
295. Obviously, when the state revises or changes its procedures, a habeas petition that alleges a systemic violation on the basis of the new conditions is not a successive petition. Rather, it is a new petition alleging a new systemic violation.
296. A decision in a pro se case that there was no systemic problem would not have preclusive effect on future litigation. See Garrett, supra note 14, at 415, 432-33;
297. see also Abram Chayes, The Role of the Judge in Public Law Litigation, 89 HARV. L. REV. 1281, 1310 (1976) (noting that public law litigation, because of its widespread impact, requires adequate representation). For a discussion of how habeas petitioners will obtain legal assistance under the proposed systemic habeas review system, see infra Section III.E.
298. See, e.g., Harlow v. Fitzgerald, 457 U.S. 800 (1982).
299. See Hoffmann & King, supra note 1.
300. Moreover, a federal ruling that there is an individual violation but no systemic problem does not preclude that individual petitioner from filing different claims in state and federal court. For example, depending on the state's procedural rules, some petitioners could file additional postconviction actions in state court in an attempt to get relief. Others could petition for an original writ in federal court. See discussion infra Section III.F. Some petitioners would also opt to pursue civil damages or other forms of civil relief in state and federal court. See, e.g., 42 U.S.C. §1983 (2006).
301. There are a number of ways to expedite consideration of future claims. For example, all future cases could be channeled to the same judge who issued the original order finding a structural problem. Cf. Garrett, supra note 14, at 441-43 (describing how Judge Weinstein in the Eastern District of New York channeled all pending habeas corpus petitions to a single decisionmaker).
302. Cf. 28 U.S.C. § 2251, 2253 (2006).
303. If a state chose to ignore the federal finding of a systemic problem and just risk the release of petitioners one by one, the federal courts might respond by adopting a more defendantfriendly interpretation of the prejudice component in individual cases so as to increase the likelihood of a state response. Alternatively, criminal defendants from the state might attempt to use the federal court finding of a systemic violation to pursue remedies under civil rights' statutes. See, e.g., 42 U.S.C. § 1983 (2006).
304. See Primus, supra note 106.
305. Admittedly, some states choose to ignore the federal decision given the limited number of cases that actually get to the federal habeas stage. See, e.g., supra note 117.
306. See Robert M. Cover & T. Alexander Aleinikoff, Dialectical Federalism: Habeas Corpus and the Court, 86 YALE L.J. 1035 (1977).
307. See id.
308. See Teague v. Lane, 489 U.S. 288, 306 (1989).
309. This analysis assumes that the federal court's finding of a systemic violation and approval of a new state procedure would constitute a new ruling under Teague that would be subject to the retroactivity bar. See id. at 301.
310. See Amsterdam, supra note 136.
311. See Daryl J. Levinson, Rights Essentialism and Remedial Equilibration, 99 COLUM. L. REV. 857, 889 (1999) (explaining that courts, which are reluctant to enforce rights with strong remedies, may dilute the nature of the right to avoid the remedy if the remedy is perceived of as too strong).
312. Cf. Ross v. Moffitt, 417 U.S. 600, 616 (1974) (holding that there is no constitutional right to counsel for discretionary appeals);
313. Pennsylvania v. Finley, 481 U.S. 551, 557 (1987) (extending Ross to collateral attacks on criminal judgments after direct appeal).
314. See Garrett, supra note 14, at 415, 432-33;
315. see also Chayes, supra note 178, at 1310 (noting that public law litigation, because of its widespread impact, requires adequate representation).
316. See Finley, 481 U.S. 551;
317. Murray v. Giarratano, 492 U.S. 1 (1989). Capital defendants do have a federal statutory right to counsel in habeas proceedings,
318. see 102 Stat. 4393 (codified at 21 U.S.C. §848(q)(4)(B) (2006)), and if a federal evidentiary hearing is granted in their case,
319. see 28 U.S.C. §2254 (2006);
320. FED. R. GOVERNING §2254 CASES 8(c).
321. See OWEN M. Fiss, THE CIVIL RIGHTS INJUNCTION 22 (1978) (discussing the special competenc of Department of Justice attorneys);
322. see also David Zaring, National Rulemaking Through Tral Courts: The Big Case and Institutional Reform, 51 UCLA L. REV. 1015, 1055 (2004) (discussing the economies of scale when the Justice Department is able to use the same techniques aereas states).
323. See, e.g., Zaring, supra note 196, at 1068 (explaining how the Department of Justice developed on-line networks where information about prison, jail management, and best practices was shared among states).
324. See Robert D. Dinerstein, The Absence of Justice, 63 NEB. L. REV. 680, 690 (1984) (discussing the quality of Justice Department attorneys).
325. See 42 U.S.C. § 14141 (2006);
326. id. § 1997 to 2000a-6.;
327. Dinerstein, supra note 198, at 680.
328. See 42 U.S.C. § 14141 (2006).
329. See, e.g., Erik Eckholm, Citing Workload, Public Lawyers Reject New Cases, N.Y. TIMES, Nov. 9, 2008, at A1 (noting that public defender caseloads are so heavy mat defenders have been forced to refuse to take on new cases). Alternatively, the recent spate of DNA exonerations could be used to argue that constitutional rights have to be protected in order to ensure that innocents are not convicted.
330. See generally Samuel R. Gross et al., Exonerations in the United States 1989 Through 2003, 95 J. CRIM. L. & CRIMINOLOGY 523 (2005). These arguments have worked to bring about other forms of pro-defense legislation.
331. See, e.g., The Innocence Protection Act of 2004, 18 U.S.C. § 3600 (2006);
332. see also Press Release, Senator Patrick S. Leahy, Judiciary Panel Holds Second Hearing on Habeas Bill (Nov. 16, 2005) (describing the Act), available at http://leahy.senate.gov/press/200511/111605.html.
333. See Jeffries & Rutherglen, supra note 174, at 1421.
334. See Myriam E. Gilles, Reinventing Structural Reform Litigation: Deputizing Private Citizens in the Enforcement of Civil Rights, 100 COLUM. L. REV. 1384, 1409-10 (2000) (noting that the Department of Justice only assigns twenty-six attorneys and fifteen FBI agents to the Special Litigation Unit that is responsible for pattern or practice cases).
335. See id. at 1404 (citing only three).
336. See Matthew J. Silveira, An Unexpected Application of 42 U.S.C. § 14141: Using Investigative Findings for § 1983 Litigation, 52 UCLA L. REV. 601, 613 (2004) (noting that Presidents Clinton and Bush have used section 14141 differently); see also Dinerstein, supra note 198, at 681 (explaining how the Reagan Administration failed to enforce CRIPA);
337. Gilles, supra note 203, at 1411 (same).
338. See Gilles, supra note 203, at 1410-11.
339. See id. at 1459-50 (noting that we can expect greater responsiveness where investigation and litigation are funded by private parties);
340. Jeffries & Rutherglen, supra note 174, at 1419-1420
341. See Brandon L. Garrett, Structural Reform Prosecution, 93 VA. L. REV. 853, 870 (2007) (discussing the role of civil rights lawyers as private attorneys general);
342. Gilles, supra note 203, at 1451 (noting that these organizations have the resources and legal expertise, as well as standing in the community, to bring legitimate petitions);
343. see also Margo Schlanger, Civil Rights Injunctions Over Time: A Case Study of Jail and Prison Court Orders, 81 N.Y.U. L. REV. 550, 621 (2006) (explaining that civil rights organizations often partner with large law firms that would commit additional resources). One potential downside to this fee-shifting arrangement is that it will increase the cost of structural reform to the state, because the state will have to pay attorneys fees in addition to funding a remedial regime to redress its systemic problem.
344. See 42 U.S.C §1988 (2006);
345. THOMAS, supra note 48, at 171-72;
346. Schlanger, supra, at 1624. Oftentimes, states engage in systemic violations of criminal procedure rights because they lack funding to fully and adequately enforce them.
347. See discussion supra Section II.B. 1. Adding to the financial burden of the state by forcing it to pay attorneys fees makes it more difficult for the state to afford solutions. On the other hand, if a state knows that it will be forced to pay attorneys fees in addition to paying for a remedy if it waits for litigation to force a solution, it might act proactively to redress its systemic problems.
348. Thus, under the proposed habeas regime, settlements would be much more frequent than under current law. See generally Anup Malani, Habeas Settlements, 92 VA. L. REV. 1 (2006) (discussing the infrequency with which habeas cases are settled and proposing various reforms to increase settlement rates).
349. See Zaring, supra note 196, at 1062-1063 (discussing the benefits of having the same attorneys handle these cases because those attorneys build links between cases which lead to learning and standardization). Of course, a notification requirement would be unnecessary if the Department of Justice had the ability and resources to monitor the filing and outcome of habeas petitions in each state, and if the Justice Department had access to the discovery and evidentiary hearing transcripts in those cases that went to the hearing stage. The notification requirement assumes that there are limited resources that hamper the Justice Department's ability to obtain this information in other ways.
350. Given the cooperative relationship between the Department of Justice and civil rights organizations, see Livingston, supra note 174, at 821 n.23, I expect that the Justice Department would share this information with civil rights organizations.
351. U.S. CONST. Art. I, §9, cl. 2 ("The privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.").
352. See Hoffmann & King, supra note 1, at 837.
353. See, e.g., Francis Paschal, The Constitution and Habeas Corpus, 1970 DUKE L.J. 605;
354. see also RICHARD H. FALLON ET AL., HART AND WECHSLER'S THE FEDERAL COURTS AND THE FEDERAL SYSTEM 1289-92 (2003) (emphasizing that Justice John Marshall stated, in Ex Parte Bollman, 8 U.S. (4 Cranch) 75 (1807), that federal court jurisdiction to issue the writ was not inherent but must be conferred by statute).
355. See, e.g., Jordan Steiker, Incorporating the Suspension Clause: Is There a Constitutional Right to Federal Habeas Corpus for State Prisoners?, 92 MICH. L. REV. 862, 874- 78 (1994). Recent dicta from the Supreme Court provides support for the argument that the scope of the Suspension Clause today is broader than it was at the time of the founding.
356. See, e.g., Boumediene v. Bush, 128 S. Ct. 2229 (2008);
357. Felker v. Turpin, 518 U.S. 651, 663-64 (1996) ("[W]e assume, for purposes of decision here, that the Suspension Clause of the Constitution refers to the writ as it exists today, rather than as it existed in 1789.").
358. -428 U.S. 465 (1976).
359. See, e.g., Boumediene, 128 S. Ct. 2229;
360. Felker, 518 U.S. 651.
361. See Felker, 518 U.S. 651;
362. see also SUP. CT. R. 20(a).
363. See Felker, 518 U.S. 651.
364. See Hoffmann & King, supra note 1, at 839-42 (arguing that these mechanisms might provide an adequate alternative under their proposal). If the Supreme Court held that a purely systemic form of federal habeas review violated the Suspension Clause, Congress could adopt a two-tiered federal habeas system in which systemic claims would be reviewed in accordance with the proposed systemic model while review of individual claims would be far more streamlined, providing only the bare minimum necessary to avoid a Suspension Clause problem.
365. Cf. Garrett, supra note 14, at 443-44 (arguing for two-tiered review in which substantive claims based on predictable causes of wrongful convictions are given more review);
366. Jeffries & Stuntz, supra note 25, at 691 (arguing for a two-tracked habeas system in which petitioners who show a reasonable probability of innocence would receive de novo review of their federal claims).
367. See sources collected supra notes 1 & 72 (noting that Senators Kyl & Kennedy both believe that habeas corpus law needs to be reformed);
368. see also Streamlined Procedures Act of 2005, S. 1088, 109th Cong. (2005), available at http://www.govtrack.us/congress/billtext.xpd? bill=s109-1088 (most recent proposal for reform);
369. H.R. 3035, 109th Cong. (2005).
370. See, e.g., Yackle, supra note 1, at 543-46 (describing the many proposals for reform that were made before AEDPA and the stalemates in Congress that prevented their enactment);
371. see also Streamlined Procedures Act of 2005, S. 1088, 109th Cong. (2005), available at http://www.govtrack.us/congress/billtext.xpd?bill=s109-1088 (proposed by Senator Kyl, the bill never passed);
372. H.R. 3035, 109th Cong. (2005).
373. See, e.g., Statement by Senator Patrick Leahy, Executive Business Meeting, Senate Judiciary Committee (Oct. 6, 2005), available at http://leahy.senate.gov/press/200510/ 100605.html (objecting to the obstacles to habeas corpus relief contained in the Streamlined Procedures Act);
374. -151 CONG. REC. S12,801 (daily ed. Nov. 16, 2005) (statement of Sen. Leahy) (advocating for passage of the Innocence Protection Act of 2004), available at http://leahy.senate.gov/press/200511/111605.html.
375. See, e.g., Streamlined Procedures Act of 2005, S. 1088, 109th Cong. (2005), available at http://www.govtrack.us/congress/billtext.xpd?bill=s109- 1088;
376. see also Press Release, Senator Jon Kyl, Limiting Endless Death Penalty Delays (July 18, 2005), available at 2005 WLNR 11247996;
377. -151 CONG. REC. S5540 (daily ed. May 19, 1995) (statement of Sen. Kyl) (complaining because "many Federal habeas corpus cases require 10, 15, or even 20 years to complete" and noting that victims "cannot be expected to 'move on' without knowing how the cases against the attacker has been resolved").
378. See Hoffmann & King, supra note 1, at 810.
379. Cf. Garrett, supra note 14, at 447-48;
380. see also Lee, supra note 153, at 200 (noting that, under the current system, the threat is not sufficient to deter).
381. See supra Section III.B.
382. See Semeraro, supra note 27, at 929 (noting that deciding the merits of an issue rather than sending it back to the offending state court "improperly let[s] the state court off the constitutional hook that should require it to treat federal law as the supreme law").
383. See Jeffries and Rutherglen, supra note 174, at 1416 (noting that structural reform litigation places problems on the agenda for political reform by calling the problems to the attention of the other branches of government);
384. Vidhya Reddy, Indigent Defense Reform: The Role of Systemic Litigation in Operationalizing the Gideon Right to Counsel 33 (Wash. U. Sch. of Law Working Paper No. 1279185), available at http://ssrn.com/abstract=1279185;
385. see also id. at 21-22 (noting that, in response to litigation efforts in 2003, the Georgia state legislature passed the Georgia Indigent Defense Act creating a statewide indigent defense system in Georgia).
386. See Livingston, supra note 174, at 845 (discussing how section 14141 consent decrees do the same thing).
387. Cf. Multiparty Habeas, supra note 84 (noting that, if a constitutional claim is raised in the case of one individual and is denied, the question is settled).
388. See Hammel, supra note 5, at 50 ("[T]he very existence of federal courts and most federal jurisdiction is based on a distrust of state courts.").
389. See supra Section II.B.
390. See Semeraro, supra note 27, at 929. This would not be true for a systemic dilution of a constitutional right by a state court judge. In such cases, there is a state court judge who could take umbrage at a federal finding of systemic violation. That said, one federal finding that a state judge's interpretation of the federal constitution is wrong and creates a systemic problem is less offensive than multiple individual findings by different federal courts that his interpretation of the federal law is wrong and merits the granting of multiple habeas corpus petitions.
391. -347 U.S. 483 (1954).
392. See Chayes, supra note 178.
393. See Jeffries & Rutherglen, supra note 174, at 1413;
394. Paul J. Mishkin, Federal Courts as State Reformers, 35 WASH. & LEE L. REV. 949, 949 (1978).
395. See Fiss, supra note 196;
396. Chayes, supra note 178, at 1307-1309
397. See Charles F. Sabel & William H. Simon, Destabilization Rights: How Public Law Litigation Succeeds, 117 HARV. L. REV. 1016, 1017 (2004).
398. See id. at 1017;
399. see also Myriam Gilles, An Autopsy of the Structural Reform Injunction: Oops... It's Still Moving!, 58 U. MIAMI L. REV. 143, 158-159 (2003).
400. See Gilles, supra note 240, at 161;
401. Jeffries & Rutherglen, supra note 174, at 1387.
402. See Jeffries & Rutherglen, supra note 174, at 1387;
403. Sabel & Simon, supra note 239, at 1017.
404. See Gilles, supra note 240, at 160.
405. See Fiss, supra note 196, at 60;
406. Jeffries & Rutherglen, supra note 174, at 1399-1400;
407. Zaring, supra note 196, at 1025 n.49.
408. See Zaring, supra note 196, at 1028;
409. see also Sabel & Simon, supra note 239, at 1091 (noting that the remedial schemes are often created with substantial input from the legislatures). Defenders of structural reform litigation also point out that state officials often welcome these lawsuits, knowing that a federal court order will insulate them from political responsibility for taking a desired but politically unpopular action.
410. See THOMAS, supra note 48, at 70;
411. Dinerstein, supra note 198, at 688;
412. Mishkin, supra note 237, at 958;
413. Sabel & Simon, supra note 239, at 1063, 1065;
414. see also Schlanger, supra note 208, at 563 (quoting a jail administrator: "To be sure, we used 'court orders' and 'consent decrees' for leverage. We ranted and raved for decades about getting federal judges 'out of our business'; but we secretly smiled as we requested greater and greater budgets to build facilities, hire staff, and upgrade equipment. We 'cussed' the federal courts all the way to the bank.").
415. See Sabel & Simon, supra note 239, at 1059.
416. See id. at 1082.
417. See City of Los Angeles v. Lyons, 461 U.S. 95, 112 (1983);
418. Rizzo v. Goode, 423 U.S. 362, 380 (1976);
419. O'Shea v. Littleton, 414 U.S. 488, 493-99 (1974).
420. See Lewis v. Casey, 518 U.S. 343 (1996).
421. See Garrett, supra note 208, at 871.
422. See Jeffries & Rutherglen, supra note 174, at 1410-1412
423. See id.;
424. Schlanger, supra note 208.
425. See Jeffries & Rutherglen, supra note 174, at 1410-12;
426. Sabel & Simon, supra note 239, at 1019;
427. Schlanger, supra note 208, at 568.
428. See Jeffries & Rutherglen, supra note 174, at 1410-12; Sabel &
429. Simon, supra note 239, at 1019, 1067-1072
430. See Jeffries & Rutherglen, supra note 174, at 1410-12;
431. Sabel & Simon, supra note 239, at 1067-72;
432. Schlanger, supra note 208, at 568.
433. See Garrett, supra note 208, at 872.
434. See Sabel & Simon, supra note 239, at 1018;
435. Schlanger, supra note 208, at 554;
436. Zaring, supra note 196, at 1019-1020
437. Legal intellectual circles would include judges, lawyers, academics, and other elites in the legal and political community more broadly. See Gilles, supra note 240, at 147-148
438. See id. at 147-49;
439. Sabel & Simon, supra note 239, at 1062.
440. See Jeffries & Rutherglen, supra note 174, at 1389;
441. Sabel & Simon, supra note 239, at 1064;
442. Russell L. Weaver, The Rise and Decline of Structural Remedies, 41 SAN DIEGO L. REV. 1617, 1631-1632(2004).
443. Cf. id. (making a similar argument about prisoners).
444. Cf. Sabel & Simon, supra note 239, at 1043 (noting that acceptance of institutional reform litigation in policing has been slower than in other areas because there is a popular fear of crime that makes judicial intervention seem costlier and riskier).
445. -42 U.S.C. § 1983 (2006).
446. Heck v. Humphrey, 512 U.S. 477 (1994).
447. Pierson v. Ray, 386 U.S. 547 (1967);
448. see also Federal Courts Improvement Act of 1996, 104 Pub. L. No.317, § 401, 110 Stat. 3847, 3853 (codified at 42 U.S.C. § 1983 (2006)).
449. City of Los Angeles v. Lyons, 461 U.S. 95, 112 (1983);
450. Rizzo v. Goode, 423 U.S. 362, 380 (1976);
451. O'Shea v. Littleton, 414 U.S. 488, 493-99 (1974).
452. See Federal Courts Improvement Act of 1996 §401.
453. See Younger v. Harris, 401 U.S. 37 (1971).
454. See D.C Court of Appeals v. Feldman, 460 U.S. 462 (1983);
455. Rooker v. Fidelity Trust Co., 263 U.S. 413 (1923).
456. See Heck v. Humphrey, 512 U.S. 44 (1994);
457. Preiser v. Rodriguez, 411 U.S. 475 (1973).
458. See id.
459. See Schlanger, supra note 62, at 1676 n.391.
460. See THOMAS, supra note 48, at 167 (noting that many civil rights complaints are dismissed for failure to adequately name the specific persons who are responsible for the alleged violations).
461. See Lewis v. Casey, 518 U.S. 343 (1996).
462. See Mishkin, supra note 237, at 964.
463. To be sure, Congress could decide to repeal section 2254 entirely and redirect the resources that were previously devoted to federal habeas review to a new modified section 1983 cause of action. However, eliminating federal habeas review of state criminal convictions entirely is likely to pose a greater potential constitutional problem under the Suspension Clause than would a limitation of federal habeas review to systemic claims. See supra Section III.F.
464. Compare 42 U.S.C. § 1983 (2006)
465. (listing no time restrictions), with 28 U.S.C. § 2254(a) (2006) (requiring that a prisoner be held pursuant to a state court judgment before the prisoner can file for federal habeas relief).
466. -401 U.S. 37 (1971).
467. See, e.g., Steven G. Calabresi & Gary Lawson, Equity and Hierarchy: Reflections on the Harris Execution, 102 YALE L.J. 255, 261-265 (1992).
468. See, e.g., Calvin R. Massey, Abstention and the Constitutional Limits of the Judicial Power of the United States, 1991 B.Y.U. L. REV. 811, 812-43 (1991);
469. see also ERWIN CHEMERINSKY, FEDERAL JURISDICTION § 13.2 at 828-829 (5th ed. 2007) (explaining that it is an open question whether Younger abstention is constitutional or prudential and summarizing the arguments on both sides).
470. See William J. Stuntz, The Political Constitution of Criminal Justice, 119 HARV. L. REV. 780, 815 (2006)
471. (citing Steven K. Smith & Carol J. DeFrances, Indigent Defense, BUREAU OF JUST. STAT. BULL., Feb. 1996, at 4).
472. See City of Los Angeles v. Lyons, 461 U.S. 95, 105 (1982) (holding that the plaintiff did not have standing to challenge the police department's chokehold policies because he could not show that he was suffering from an injury with present effects);
473. Rizzo v. Goode, 423 U.S. 362, 372 (1975) (holding that the plaintiffs did not have standing to challenge the allegedly racially discriminatory practices of the police because they could not show a present injury);
474. O'Shea v. Littleton, 414 U.S. 488, 495-97 (1973) (holding that the plaintiffs did not have standing to challenge the allegedly racially discriminatory practices of the criminal courts in setting bond, sentencing, and establishing jury practices because the plaintiffs could not demonstrate any injury to them).
475. See Rizzo v. Goode, 423 U.S. 362, 372 (1975).
476. -42 U.S.C. § 14141 (2006).
477. See id.
478. See Gilles, supra note 203, at 1447.
479. See id. at 1384, 1452 (discussing the failure of citizen suits provisions to provide any check against frivolous claims).
480. See id. at 1404-1406 (describing how all of the lawsuits that the Department of Justice filed under section 14141 have resulted in consent decrees)
481. See Jeffries & Rutherglen, supra note 174, at 1421.
482. See discussion supra Section III.E.
483. See Garrett, supra note 14, at 388 n.15 (noting that for two decades federal courts certified habeas class actions);
484. Multiparty Habeas, supra note 84 (arguing for habeas class actions).
485. See Garrett, supra note 14, at 409.
486. See id. at 443.
487. See id. at 408.
488. See, e.g., Amsterdam, supra note 136.
489. See, e.g., Hammel, supra note 5, at 77 (referring to this concern as the "legitimation effect").
490. See Multiparty Habeas, supra note 84, at 1507 (noting that according benefits to all habeas class members may create a disruption in the administration of criminal justice which nonretrospective decisions are in part designed to prevent).
491. See discussion supra Section III.D.
492. See generally Garrett, supra note 14.
493. See id.
494. Professor Garrett does not limit his argument for aggregation to the state court context, but for the reasons discussed supra Section V.C.3, I do not believe that procedural aggregation of claims in federal habeas would be as effective in checking systemic state violations as the proposed systemic habeas review system.
495. To be sure, there are examples of aggregation in criminal cases, but they are the exception rather than the rule.
496. See Garrett, supra note 14, at 410-420 (describing instances of state aggregation).
497. That said, the proposed systemic habeas review system might give state courts an incentive to create aggregation mechanisms in order to redress systemic problems before they reach the federal habeas courts. If so, the benefits of state-court aggregation that Professor Garrett describes might be brought to bear.
498. See 1972-2006 GENERAL SOCIAL SURVEY ON CRIME AND LAW ENFORCEMENT (2006), available at http://sda.berkeley.edu/cgi-bin/hsda?harcsda+gss06 (indicating that an overwhelmingly large majority of people surveyed believe that courts treat criminals too leniently).
499. See Rebecca Zeifrnan, Backlogged DNA Tests Keep Hopes on Ice: Victims, Wrongly Convicted Anxiously Await Resolution, CAPITAL TIMES (Madison, Wis.), Oct. 12, 2004, at 3A (noting that legislation to fund DNA testing in capital cases was "stalled in the Senate because of a provision that allocates $350 million to improved legal representation in death penalty cases," legislation that the Department of Justice and others called "soft on crime");
500. see also Donald A. Dripps, Ineffective Assistance of Counsel: The Case for an Ex Ante Parity Standard, 88 J. CRIM. L. & CRIMINOLOGY 242, 252 (1997) ("Legislatures, responding to voters fearful of crime, have no incentive to devote scarce resources to [criminal] defense...."). Of course, certain issues - i.e., the right-to-counsel crisis or DNA exonerations-could spark an act of legislative reform that gave federal courts jurisdiction to entertain systemic claims. See discussion supra note 201 and surrounding text. However, it is unrealistic to think that Congress would be willing to enact individual reforms for each systemic problem that arises in a state.
501. See Charles Babbington & Jonathan Weisman, Senate Approves Detainee Bill Backed by Bush: Constitutional Challenges Predicted, WASH. POST, Sept. 29, 2006, at AOl (noting that Pennsylvania Senator Arlen Specter voted for a bill that would strip detainees of habeas corpus rights even though he believed the bill to be unconstitutional);
502. see also Michels, supra note 106 (noting that Florida State Senator Victor Crist, when asked about budget cuts to the indigent defense system in that state, indicated that the legislature had no choice and stated, "Do we cut the schools? Do we cut health services? Everybody has to share in the reductions.").
503. Compare ALEXANDER M. BICKEL, THE LEAST DANGEROUS BRANCH: THE SUPREME COURT AT THE BAR OF POLITICS 116 (2d ed. 1986) (espousing limited role of federal courts due to countermajoritarian difficulty), with
504. Barry Friedman, Dialogue and Judicial Review, 91 MICH. L. REV. 577, 667-668 (1993) (questioning the extent and force of the claim that federal courts are countermajoritarian).
505. See O'Shea v. Littleton, 414 U.S. 488, 501-02 (1974);
506. Fiss, supra note 196, at 65;
507. Hammel, supra note 5, at 40.
508. See, e.g., Amsterdam, supra note 136;
509. see also O'Shea v. Littleton, 414 U.S. 488, 501-502 (1974) ("[A] major continuing intrusion of the equitable power of the federal courts into the daily conduct of state criminal proceedings is in sharp conflict with the principles of equitable restraint which this Court has recognized....").
510. See Hammel, supra note 5, at 50 ("[T]he very existence of federal courts and most federal jurisdiction is based on a distrust of state courts.").
511. See, e.g., Eckholm, supra note 201;
512. Amir Efrati, It's Rare for Prosecutors to Get the Book Thrown back at Them, WALL ST. J., Apr. 16, 2009, at A11.
513. See, e.g., Press Release, National Legal Aid & Defender Association, NLADA's David Carroll to Testify in Historic Congressional Hearing on Topic of Right to Counsel: Congressional Hearing to Focus on Failings of Public Defense Systems, with Emphasis on Michigan, as Exposed in a Recent NLADA Report (March 19, 2009), at http://www.nlada.org/ News/News-Press-Releases/2009031959108246.
514. See supra notes 221-224 and accompanying text.