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Debate Club
DEBATE CLUB 8/1/05

How Important is Habeas?

Ted Frank and David Bruck debate.

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Habeas corpus, through which a prisoner can challenge the authority of a prison to hold him, has long been considered a crucial tool for prisoners trying to have their sentences overturned. But since the 1996 Antiterrorism and Effective Death Penalty Act—a series of laws designed to "deter terrorism" and "provide for an effective death penalty" passed in response to the Oklahoma City bombing—attempts to limit habeas have become more and more common as, according to Arizona Senator Jon Kyl, habeas petitions have continued to increase.

Next month, the Senate will consider a bill designed to limit what Kyl calls "endless death penalty appeals" under habeas provisions. Critics argue that the new bill would gut constitutional protection for criminals and sanction the execution of the falsely convicted.

Should Congress limit habeas appeals?


Ted Frank is Resident Fellow and Director of the American Enterprise Institute Liability Project. David Bruck is Clinical Professor of Law and Director of the Virginia Capital Case Clearinghouse at Washington and Lee University.

Frank: 8/1/05, 09:22 AM
David, I'm very much looking forward to our discussion this week, and it's an honor to share this virtual platform with someone who has had so much first-hand experience with capital cases.

The Streamlined Procedures Act of 2005 is aimed at the perceived problem that too many federal judges misuse their habeas powers to judicially nullify or unreasonably delay death sentences, a tactic that is especially objectionable in cases where there is no dispute over the guilt of the convicted murderer on death row. It is not unusual for the Ninth Circuit to stall death sentences for years through rulings that are, at best, highly questionable; witness the number of summary and 9-0 reversals. District and appellate judges in the Third Circuit all but abolished the death penalty in Pennsylvania by permitting claims to be perpetually re-litigated or delayed indefinitely. Such delays are especially agonizing for families of victims. If the judges are acting so lawlessly, one would think the proper remedy is impeachment. But there is difficulty in distinguishing impeachment for lawless decisions from impeachment for unpopular rulings, which in turn poses danger to the separation of powers. It is not unreasonable for Congress to instead seek to circumscribe federal judicial discretion, by limiting it to cases where states have not provided adequate collateral review procedures or where the petitioner claims actual innocence through newly discovered evidence.

The Act's limitation on federal jurisdiction for capital habeas occurs only in states that the attorney general (subject to federal review by the D.C. Circuit) certifies as providing competent counsel to indigent capital defendants throughout the state-court collateral-attack process. Such a capital defendant can use state-provided counsel to ask the trial court to overturn the jury's sentence; appeal successively on federal issues to an intermediate court of appeals (in the vast majority of states with three levels of courts), a state high court, and the United States Supreme Court; and then have the opportunity to bring a collateral attack successively to those same three or four courts. That's as many as eight opportunities to correct federal constitutional error. And even after all those appeals, that convicted defendant can still seek habeas relief from lower federal courts if he or she has a claim of innocence, or even a claim of a federal constitutional right established retroactively by the Supreme Court.

There are other aspects to the Act, of course, but this particular one seems so reasonable and incremental that I'm surprised at the hyperbolic outrage addressed at the Act and the claims that it will "gut" defendants' rights. What's the rationale for an eighth, ninth, and tenth level of appellate review on purely federal issues of constitutionality? In a world where the death penalty is both constitutional and democratically established, what's the alternative response to the systemic problem of the substantial number of federal judges who refuse to apply the rule of law in capital cases?

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Bruck: 8/2/05, 08:59 AM
I'm also looking forward to discussing this issue with you, and I hope we'll have shed a little light before we're done.

You portray the current round of habeas corpus "reform" as a modest response to agenda-driven liberal judges. The actual provisions of the misnamed "Streamlined Procedures Act" don't seem to me to match that description at all. But before we get to that, let's step back and look at why there are lots of habeas petitions in the federal courts.

In 1968, when Richard Nixon first turned "law and order" into a staple of American political campaigning, there were about 200,000 prisoners in this country. Now, many tough-on-crime election campaigns later, there are 2 million, and we're locking up a higher percentage of our own citizens than any other nation on earth. Life imprisonment without parole, a rare punishment for most of our history, is now commonplace (and not just for murderers). And we're completely alone among all the western industrial democracies in our retention of the death penalty.

Any system that punishes so many people so severely is going to make serious mistakes. The state courts are supposed to catch and correct most of these mistakes. But most state judges have to run for re-election. Wrongly-convicted or wrongly-sentenced prison and death row inmates are not exactly a formidable voting bloc, while people who don't like soft-on-crime judges are. Add to the mix the fallibility of all government functionaries—including police, prosecutors, and courts—and the fact that most criminal defendants have to rely on underpaid and overworked court-appointed lawyers, and we should be able to see that we've assembled the ingredients for a lot of injustice: it's only tolerable because for all of us who aren't in prison, what's out of sight is out of mind.

Federal habeas corpus is supposed to keep this vast punishment apparatus from spinning completely out of control. The idea is that in every state, at some point before the execution takes place or the cell door is welded shut, an independent, life-tenured federal judge can evaluate whether the conviction and sentence satisfy the minimal nationwide requirements of the Bill of Rights. To be sure, in the vast majority of cases (over 99 percent in the Fourth Circuit) the federal courts uphold the state court verdicts and sentences. (The Third Circuit, which you single out for special criticism, rules for the prosecution about nine times out of ten). But the prospect of some sort of federal quality-control down the line helps keep politically-vulnerable state judges from simply taking the path of least resistance and ruling for the prosecution in every single case.

The habeas safety net is already pretty tattered, thanks to many years of Rehnquist Court cutbacks and a sweeping revision by Congress just nine years ago. The SPA would effectively finish habeas off, leaving federal courts to passively contemplate—but almost never be able correct—the kinds of errors and injustices that occur in real cases.

You may not agree with that assessment, but in debating federal habeas, let's at least keep in mind what it's there for.

Frank: 8/2/05, 01:30 PM
We agree that there's something problematic about judges having to face re-election. Perhaps in the criminal context, judges rule poorly because they feel a need to be perceived as "tough on crime"—though, of course, convicting the innocent is the opposite of being tough on crime, because it reduces the probability that a criminal will be treated worse than an innocent, and thus reduces the disincentive for crime. But the evidence doesn't seem to indicate that this is the problem. Professor Liebman's study found that only a tiny fraction of state-court reversals of capital sentences resulted in exoneration of defendants, which would seem to indicate that state courts (very few of whom in Liebman's study are in states that would have met the Act's requirements for exempting them from federal habeas) are hardly being too stingy in granting relief. The ninety to ninety-nine percent statistic you cite must be for all federal criminal habeas petitions. Most of the Act's limitations apply only to capital habeas cases, where Professor Liebman found a reversal rate that is four to forty times higher.

Why the discrepancy? We see that states aren't being unusually sloppy in capital cases. There's no reason to think that both federal and state courts are overwhelmingly obscenely indifferent about injustice in non-capital cases. Okay, death sentences get more scrutiny, but the numbers seem to indicate that at least some federal judges are deciding these capital habeas cases on grounds other than law.

You've invited a discussion about the purpose of federal habeas. I think your argument proves too much: the potential pitfalls of state-court judging can't, alone, be the rationale for federal habeas. Federal courts don't collaterally review the constitutionality of the procedural fairness of state-court civil cases, where judges also face election pressures (and often campaign donations from the lawyers in front of them). The larger cases of this sort can have national import far greater than the local effects of an individual criminal sentence. Civil plaintiffs and defendants unhappy with the treatment of their federal constitutional rights to due process in state court have to make do with the rare occasions when the Supreme Court grants certiorari review—and that's so, even though losers of civil cases don't have the opportunity for collateral attack on judgment or executive-branch relief that convicted criminals do. (In many states, civil appeal bond requirements or restrictions on interlocutory appeals in class actions prevent defendants from seeking even direct appellate relief.) Why isn't the combination of state-funded state-court collateral review with the existing option for certiorari sufficient to protect the rights of criminal defendants? There seems to be little controversy that civil defendants get zero to three levels of appellate review; why aren't seven levels enough in criminal cases, especially with an eighth, ninth, and tenth level of appeal still available for the innocent or for convictions in states that don't meet muster?

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Bruck: 8/3/05, 09:09 AM
I appreciate your forthrightly questioning the need to have habeas review at all. You're wrong about the facts (as I hope to show shortly), but at least your approach is more honest than that of the sponsors of the "Streamlined Procedures Act." They don't claim that federal habeas review is unneeded: if they did, they could admit that their bill would pretty much abolish it. Instead, they misrepresent the bill as limiting relief to prisoners who are "actually innocent." But the SPA is designed to ensure that no almost one would ever actually get relief.

It's important to realize that Congress has already (in AEDPA, the 1996 Antiterrorism and Effective Death Penalty Act) forbidden federal courts to grant relief to any state prisoner unless the state courts acted unreasonably when they upheld his conviction or sentence. In other words, it's not enough for a state prisoner to show that the state court decision in his case violated the federal Bill of Rights: he's got to show that the state court's error was obvious, an off-the-charts judicial misfire.

Existing law also requires that the prisoner navigate a mind-boggling array of procedural requirements, any one of which can torpedo his federal habeas petition for good. The SPA leaves all of these obstacles in place, and adds even more. For example, the bill provides that if a state court justifies a federal constitutional violation by ruling that the error was "harmless"—that is, that the defendant would still have been convicted or sentenced to death even if he'd had a fair trial—the federal courts are forbidden to say otherwise, no matter how obviously wrong the state court's claim of harmlessness may have been. Likewise, the SPA forbids the federal courts from reviewing any case that the prosecution won in state court on a procedural technicality—even when the technicality was a just a phony contrivance invented to keep the prisoner from winning his appeal.

The SPA appears to allow an exception to these draconian rules if the defendant can somehow prove his innocence. But he's got to do it so conclusively that no reasonable jury could ever have convicted him, and even then, the federal court has to leave the conviction and sentence intact unless the prisoner can also show that he couldn't have proven his innocence sooner! (By the way, don't try blaming your court-appointed lawyer, even if he was drunk, asleep, or handling his first case. Under the SPA, having a bungler for a lawyer is no excuse for not having proved your innocence on the state's procedural schedule).

This is not about streamlining or "delay." It's about whether we should re-design our system of federal review to guarantee that, right or wrong, the prosecution will never lose.

Frank: 8/3/05, 03:48 PM
I disagree with your characterization that the Streamlined Procedures Act and its sponsors are dishonestly "abolishing" habeas. This is a huge overstatement. Some historical perspective is worthwhile. In 1830, habeas was deemed unavailable even for innocence claims, because the very fact of the guilty judgment in a "court of competent jurisdiction" provided "sufficient cause" to keep a prisoner. Congress did not provide any federal habeas remedy for prisoners in state custody until 1867. And no one in the first four score years of our Republic suggested that the lack of an equivalent to the modern-day Section 2254 meant that the federal government had failed its constitutional obligation to provide a habeas remedy. The Act's habeas remedy is substantially broader. In conjunction with last year's Innocence Protection Act, today there are unprecedented opportunities for federal support for the exoneration of convicted innocents in state-court post-conviction review.

Your discussion of the Act omits a critical component. States can only opt in to the rules limiting habeas review of capital cases if they establish "a mechanism for the appointment, compensation, and payment of reasonable litigation expenses of competent counsel in State post-conviction proceedings brought by indigent prisoners," including standards for competency. The Attorney General's regulations and certifications will be reviewable in the D.C. Circuit. Giving states incentives to provide competent counsel will decrease, rather than increase, the number of procedural defaults, and thus increase the accuracy of the decisions of state courts—which, as I discussed in my last post, have, at least in the post-Civil Rights era, been solicitous and cautious in protecting capital defendants' rights, even without these new programs for funding post-conviction litigation. It's hardly the case that "the prosecution will never lose."

On the one hand, innocent indigent defendants improperly convicted increase their chances of being exonerated sooner. On the other, convicted criminals whose guilt is not in question are less able to use federal courts to delay lawfully-imposed death sentences for years. That seems win-win to me.

You note the Act's restrictions on review of cases involving harmless error and procedural default. But what evidence is there that 21st century state courts are disingenuously using harmless-error doctrine to run roughshod over defendants' rights? And why shouldn't, in the words of Judge Easterbrook, "rules of procedure be designed to induce litigants to present their contentions to the right tribunal at the right time"? (Too, many states permit claims of actual innocence to be brought at any time.)

In contrast, there are copious examples of 9-0 and summary reversals that show that some federal judges are disingenuously using habeas to delay executions for years. I thus repeat the question I asked on Monday: If you're dissatisfied with the Act, what alternative solution would you propose to the systemic problem of the substantial number of federal judges who refuse to apply the rule of law in capital cases?

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Bruck: 8/4/05, 09:19 AM
If you'd take another look at the SPA's provision about providing counsel to death row inmates in state post-conviction proceedings, you'd notice it only would guarantee a "mechanism" for providing such counsel: if the actual lawyer the system provides thereafter screws up your case, tough luck. When the Post Office loses your package, you don't want to be told that they've got a "mechanism" in place to keep that from happening. But when a condemned prisoner's court-appointed lawyer fritters away his last chance in state court, the "streamlined" federal habeas system would have little to offer but bland assurances that such screw-ups are probably less frequent than they used to be. Call me old-fashioned, but I think judges do better when they're allowed to rule on the actual facts before them, one case at a time.

Speaking of which, Ted, I'd like to try to get our discussion a little more focused on real cases. You insist that the death penalty has been stymied by "disingenuous" federal judges. Who? How often? And in which cases?

And I'm not asking you for one, two or three examples: we shouldn't strip courts' jurisdiction to protect basic human rights (like the right to life) just because a dozen cases out of thousands seem to be taking too long.

In a way I've asked an unfair question: You can't tell me how much needless delay has afflicted the system, because no one knows. That's partly why, just yesterday, the Conference of Chief Justices, representing almost every state judicial system in the country, called on Congress to slow down and study this whole issue before rushing the SPA into law.

Let's stop and think about that. These are the very state judges whose decisions are "second-guessed" and occasionally reversed on federal habeas review. But the state chief justices point out that "federal habeas corpus review of both capital and non-capital convictions is an established part of the legal structure of this country," and they urge Congress not to make any more sweeping changes until the effects of the 1996 round of habeas cutbacks have been fully assessed.

You're right that we didn't have habeas for state prisoners for the first eighty years of our nation's history. We had to win it at Shiloh and Gettysburg. And until very recently, Congress preserved and defended that hard-won federal jurisdiction. But in the age of the 15-second tough-on-crime TV commercial, federal habeas has become just another hot button for politicians to push. Well, it's not a button. It's part of our priceless heritage of freedom. Let's be careful with it.

Frank: 8/4/05, 03:34 PM
When I hear "Shiloh and Gettysburg" in a discussion about habeas, I think of Ex parte Milligan, Merryman, and McCardle, which probably aren't the precedents of ancient respect for habeas you wish to invoke. The Civil War freed the country from the curse of slavery, but it has nothing to do with whether federal habeas honors state procedural waiver. As late as 1950, in Darr v. Burford, the Supreme Court interpreted the federal habeas statute to bar such procedurally waived claims. Darr wasn't overturned until 1963 in a 6-3 opinion, Fay v. Noia, that Justice Harlan called an "abrupt break with the past." Then Wainwright v. Sykes narrowed that standard in 1977. We're not talking about a sacrosanct legacy for which General Grant fought; we're debating a malleable judicial rule that's younger than two of the stars of "Desperate Housewives." But the state courts of 2005 are not the racist kangaroo courts of 1955. Whatever justification existed for the court to "turn[] its back on history" in 1963 does not exist now. Though I don't object to the Wainwright standard, it is not outrageous for Congress to reassert a preferred statutory interpretation.

I can't answer your question about "real world cases" in the space available, but I refer you to the Congressional testimony of prosecutors Ronald Eisenberg, Kent Cattani, John Pressley Todd, and Thomas Dolgenos.

Your scenario where a convict loses a challenge because of a lawyer's "screw-up" proves too much. Any set of finite habeas rules is necessarily going to have some hypothetical case where an attorney's incompetence "fritters away [a] last chance." That might be an argument against capital punishment, for better funding of public defenders, or for a more efficient pro bono regime, but it's not an argument against the new procedural rule. The SPA is no different than any other regime in that regard.

The alternative is to remove all limits from collateral attacks: heads, I win; tails, I challenge my attorney for incompetence and no conviction is ever final. But iterative proceedings don't necessarily asymptotically approach perfection. Over time, witnesses die, or have their memories fade, or are forced to recant because of the additional opportunity for witness intimidation. Given the (entirely proper) prohibition on double jeopardy, repeated habeas does reduce false convictions, but at a rapidly increasing marginal cost of false exonerations and unnecessary retrials. We can easily entirely eliminate false positives by never convicting anyone, but that clearly isn't the optimal solution.

The real question is which set of rules minimizes the societal cost of false positives and false negatives at the least cost to judicial resources within the constraints provided by the Constitution. As Justice Jackson warned, "It must prejudice the occasional meritorious application to be buried in a flood of worthless ones." Limiting federal capital habeas to states without appropriate collateral review and to cases of true exoneration focuses judicial resources on the cases of the defendants who most need judicial review and eliminates the cases where abuse of the writ is most likely.

I've enjoyed our conversation.

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Bruck: 8/5/05, 08:11 AM
As I've already explained, the SPA wouldn't actually protect innocent prisoners in need of "true exoneration" because it would turn federal habeas review into a maze of nothing but dead-ends. And even if an occasional innocent inmate could thread the SPA needle, the "streamlined" system would still shut out prisoners who were unconstitutionally sentenced, victimized by racial discrimination, or otherwise denied basic fairness.

So if we're going slash the federal courts' habeas jurisdiction on the basis of macroeconomic cost-benefit analysis, we'd better have some evidence that the benefits outweigh the costs of cutting the federal habeas life-line to what you have delicately called the "false positives."

But instead of evidence, supporters of the SPA mostly offer generalizations about death penalty cases and "delay." You'd never guess that most of the SPA's new obstacles would apply to all habeas petitions or that 99 percent of habeas filings are by inmates who are not on death row. Inmates like Brandon Moon, freed last year by a federal judge after 17 years in a Texas prison for a rape we now know he didn't commit. If the SPA was on the books, he'd probably still be in prison, hopelessly snared by the SPA's new procedural obstacles. Isn't that a "societal cost?"

Ronald Williamson was another "false positive." He was convicted and sentenced to death by an Oklahoma state court based on the testimony of a jailhouse informant who turned out—after Williamson's life was saved by a federal court's grant of habeas relief—to have been the real murderer. But as the Innocence Project's Barry Scheck explained to the Senate Judiciary Committee last month, Williamson would have been executed long before the truth came to light had the SPA been in effect.

And the Williamson case was, in some ways, an easy one, because there was DNA to test. In about 80 percent of recent exonerations there was no DNA, so the truth had to come out the old-fashioned way: by painstaking re-investigation until police or prosecution error—or worse—was finally exposed. Those are the sorts of cases that the SPA would bury without a trace.

The abstract tone of your defense of the SPA, Ted, reveals part of what's troubling about this bill. The proposals that make up the SPA are not the product of experience. They are the product of belief. Some of that belief is ideological—the 200-year-old American argument over state versus federal power. And part is just the careless and demonstrably wrong assumption that every federal habeas petitioner is guilty, and every habeas petition is a scam.

That's the real logic behind the SPA's proposed system of federal "review" where prisoners never win. It would be more honest to propose abolishing federal habeas outright. But then there would be no evading the question of whether leaving the next Brandon Moon in prison, and executing the next Ronald Williamson, would be acceptable prices to pay for a system that gave state courts the final word in virtually every criminal case.

Ted, you've made a valiant effort, but your bill's a bad bargain. Maybe we can at least agree on what seems to me to be the first rule of common sense, which is to pay attention to the facts. Congress needs to gather the evidence, and take the time to weigh it, before it does any more surgery on habeas corpus.

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