Great Writ of Habeas Corpus

New York Law Journal

May 17, 2011
by Alan S. Lewis and Jonathan M. Kirshbaum

Ever since 1867, the Great Writ of habeas corpus has been available to protect the federal constitutional rights of people convicted of state law crimes.[1] Courts have often waxed poetic about the importance and necessity of the writ of habeas corpus in our federalism system. It has been affectionately described as the "fundamental instrument for safeguarding individual freedom against arbitrary and lawless state action."[2]

Despite its cherished position as the cornerstone of liberty, there has been an ongoing attack on the ability of habeas corpus to reach and correct constitutional violations occurring in the state courts. Over the past 35 years, the U.S. Supreme Court has steadily implemented nearly insurmountable procedural roadblocks to gaining habeas relief.[3]

More recently, the deck has become even more stacked against habeas petitioners. In 1996, Congress passed the Antiterrorism and Effective Death Penalty Act (AEDPA), which placed severe limitations on habeas relief. Most critically, post-AEDPA, even where a federal judge concludes that a constitutional violation has occurred, a petitioner is not guaranteed relief from his unconstitutional confinement. Instead, the petitioner must now show that the state courts were not merely mistaken when they deprived him of his constitutional rights, but that the courts were "unreasonably" wrong.[4]

The result, not so infrequently, is that a federal court will sanction the conviction of a possibly innocent person merely because the state court's failure to perceive constitutional error, while wrong, was not badly enough wrong.

In the wake of this assault on the effectiveness of the writ, two law school professors, Joseph Hoffman, of Indiana University and Nancy King of Vanderbilt University, have sought to stick the final nail in the coffin for habeas. Arguing that habeas in its current form is "broken," they have been engaged in a full court press, including an opinion piece in The New York Times, to advocate that Congress repeal the writ for everyone except those sentenced to death and those few who can make a gateway showing of actual innocence.[5]

They posit that in very recent years less than one-half of one percent of the approximately 17,000 non-capital habeas litigants have succeeded each year, a percentage that the authors contends makes habeas "useless."[6]

In other words, although it can be estimated that over a thousand state court prisoners obtained habeas relief during the 15-year period since the enactment of AEDPA, the liberation of these victims of our imperfect criminal justice system, many of whom were surely innocent and others possibly so, is not enough to make the whole project worthwhile. Better, according to the authors, simply to consign hundreds of possible innocents to decades in prison, than to ask the busy federal courts to review their claims.

Hoffman and King premise much of their argument on the idea that federal courts are not needed to enforce federal constitutional rights in state criminal trials because state courts allow defendants to raise federal issues.[7] They point to the fact that state court prisoners are allowed to file "an appeal" and a "post-conviction petition."[8]

But should state court judges, who are often elected or otherwise subject to political pressure and who bear the weight of case loads that can dwarf the dockets of federal judges, really be the final arbiters of federal constitutional issues? Plainly, there are occasions when we take comfort that federal judges, whose expertise is in federal law, have the final say on federal constitutional rights.

Moreover, the notion that state court "post-conviction-petitions" have taken the place of federal habeas is hard to square with reality. For example, the practice in New York is for these petitions to go back to the same judge who sat at the original trial. It is not very often that such a judge will agree that a trial over which she presided was fundamentally unfair. That stands in marked contrast to the independent, life-tenured federal judge whose only interest in a habeas proceeding is to ensure that the Constitution was properly followed.

Hoffman and King claim that the writ has become subject to "abuse," resulting in state prisoners overwhelming the federal courts with a "never ending stream of futile petitions."[9] This is misleading because it ignores that the rules governing federal habeas corpus claims require a quick review of all petitions, followed by the summary dismissal of the obviously meritless claims.[10] Each year, thousands of meritless petitions are quickly dismissed in this fashion, leaving the courts to focus on the habeas petitions that are not plainly without merit.

Critically, Hoffman and King ignore a major factor driving the number of habeas filings: the percentage of people who we incarcerate continues to grow every year. This number now dwarfs our own national historical experience as well as the rates of incarceration in virtually every other civilized country.[11] And the number of the jailed continues to skyrocket as states have implemented harsher sentencing schemes that have greatly increased the sentences that are being imposed.

Hoffman and King's proposal is to shift resources away from non-capital habeas and over to new funds for "training" of defense attorneys.[12] The response should be obvious. Not only is the latter no substitute for the former, but we all know how quickly such fungible funding can die or get re-allocated whenever the budget axe is wielded, something that has been happening with increased ferocity.

In the end, there is nothing broken about the concept of federal habeas review of state court convictions. To those who cherish the constitutional freedoms that belong to everyone, habeas corpus is anything but useless. The redress of injustice, even if it happens infrequently, is perhaps the most important value that our legal system serves.

If any fix is needed, it is to the AEDPA-driven notion that federal courts should sanction the unconstitutional convictions of potentially innocent persons, just because the state court's errors were not "unreasonable." Congress should indeed amend the habeas statute, not in the manner that Hoffman and King suggest, but instead to modify the unreasonable aspects of AEDPA that result in the sanctioning of unconstitutional trials and the continued incarceration of persons never accorded their right to a fair trial. Our constitutional values demand no less.

Alan S. Lewis, a partner at Carter Ledyard & Milburn, handles white-collar defense matters and is pursuing habeas corpus relief on behalf of L. Dennis Kozlowski, the former CEO of Tyco. Jonathan M. Kirshbaum is senior appellate counsel at the Center for Appellate Litigation and author of a blog on habeas corpus litigation in New York's federal courts (

This article is reprinted with permission from the May 17, 2011 issue of the New York Law Journal. © 2011 ALM Media Properties, LLC. Further duplication without permission is prohibited. All rights reserved.


[1] Act of Feb. 5, 1867, ch. 28, §1, 14 Stat. 385.

[2] Harris v. Nelson, 394 U.S. 286, 290-91 (1969).

[3] This process began in Wainwright v. Sykes, 433 U.S. 72 (1977), when the Court replaced the more forgiving "deliberate bypass" standard for overcoming a procedural default in state court with the highly onerous "cause" and "prejudice" standard.

[4] 28 U.S.C. §2254(d)(1).

[5] Joseph L. Hoffman and Nancy J. King, "Justice, Too Much and Too Expensive," New York Times, April 17, 2011. The professors have also authored an academic article; released a book; and created a website to promote the book.

[6] King & Hoffman Op-Ed.

[7] Id.

[8] Id.

[9] Id.

[10] Rule 4, Rules Governing Habeas Corpus Cases Under Section 2254 ("The clerk must promptly forward the petition to a judge…and the judge must promptly examine it. If it plainly appears form the petition…that the petitioner is not entitled to relief in the district court, the judge must dismiss the petition…").

[11] Adam Liptak, "U.S. prison population dwarfs that of other nations," N.Y. Times, April 23, 2008.

[12] King & Hoffman, Op-Ed.

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