In a 2009 essay in the New York University Law Review, Professors Joseph Hoffmann and Nancy King declare that, with a few exceptions, federal habeas review of non-capital state court convictions should be abolished.  They point out that habeas petitions are successful less than one percent of the time, at least in part because state courts today can be trusted to protect defendants' federal constitutional rights.  Furthermore, all states provide for appellate and collateral review, which they think obviates the need for additional review at the federal level.  Thus, Hoffmann and King conclude that the time and money devoted to federal habeas review would be better spent investing in indigent defense at the state level.

In a response to be published in the Cornell Law Review, co-authors John Blume, Sheri Lynn Johnson, and Keir Weyble argue that Hoffmann and King have overlooked vital benefits of federal collateral review.  In their view, habeas enables federal courts to assist states in the development of federal constitutional law and to safeguard federal constitutional rights.  They note that most state judges lack life tenure and thus must remain on good terms with political leaders and/or voters to maintain their positions, undermining their ability to safeguard the rights of criminal defendants.  In any case, curtailing federal habeas review would not necessarily reduce prisoner litigation in federal courts, because prisoners could still file lawsuits under the Constitution's Suspension Clause alleging that state collateral review was not an adequate substitute for federal habeas review.  Finally, they doubt that states would devote more resources to  indigent defense if federal habeas review was abolished.

This is a debate worth having, and all those interested in the future of federal habeas review of state court convictions should read both of these thoughtful articles.

Posted in Academic Round-up, Featured

Recommended Citation: Amanda Frost, Academic round-up, SCOTUSblog (Oct. 24, 2010, 9:08 PM), http://www.scotusblog.com/2010/10/academic-round-up-60/