Thursday, September 02, 2010

The Cost of Habeas?

Jason Mazzone

Virtually every proposal to reduce the workload of federal district court judges focuses on the burden of habeas petitions brought by state prisoners. Today, habeas petitions by state inmates account for one in fourteen of the civil cases filed in federal court. Habeas petitions, which are rarely granted, are commonly said to waste judicial resources. In their groundbreaking study of the costs and benefits of habeas litigation, Joseph Hoffmann and Nancy King conclude that federal habeas review of most non-capital state court cases should simply be abolished. The saved resources, they argue, should be directed to helping states provide better defense to criminal defendants.

I have a different perspective. While I don’t doubt that habeas litigation consumes resources that could be better used in other ways, I don’t view habeas petitions to be as burdensome as they are commonly perceived.

On a case-by-case basis, habeas cases strike me as among the least burdensome to district court judges. As Professors Hoffmann and King observe, in a habeas case there can be multiple filings and applications for the district court judge to deal with and in many cases the petition is referred to a magistrate judge for a report and recommendation. Nonetheless, compared to other kinds of cases, deciding habeas cases is pretty formulaic.

Many habeas petitions fail to satisfy a procedural requirement and so can be disposed of with little difficulty. Petitions that are procedurally proper and advance to resolution on the merits are also rarely challenging to decide. Although the facts of each case vary, petitioners (who do not have a right to an appointed lawyer) raise a discrete set of legal claims. Most claims do not require much research or contemplation on the part of the judge because they simply lack merit. And anybody who reads a judge’s habeas decisions will see that there is a lot of cutting and pasting from earlier opinions. (Lawyers for the state also cut and paste in their opposition filings. I have seen briefs by the state that included erroneously the name of an earlier petitioner.)

Habeas cases also differ in other ways from most civil cases. In habeas cases, judges do not typically have conferences with the parties. There are not usually telephone calls to chambers. Hearings are very rare. There is not usually discovery. There is almost never oral argument. Many civil cases bring cartloads of documents to chambers, particularly with respect to summary judgment motions. Habeas cases have comparatively little paperwork.

Moreover, much of the work involved in resolving a habeas case is farmed out. I have spoken with many law students who have interned for federal district court judges or for federal magistrate judges during a summer or the academic year. Invariably, they have drafted a habeas opinion. This is no surprise. Assigning a habeas petition to an intern provides for interesting work that can be accomplished in the course of a summer or a semester. A law student can handle the task because the legal arguments are not difficult to address and there are templates from which to draw.

Critics of habeas cases like Professors Hoffmann and King might still be right that habeas petitions waste resources. But other kinds of cases (employment discrimination cases come to mind) might provide an even lower bang for the buck. In thinking about easing the workload of district courts, we should look broadly across all types of cases because some are more taxing than others.


I'm a bit confused here. There's that pesky language in the Constitution: "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."

It appears to me, based on this, that doing away with habeas petitions, short of starting a civil war to provide some pretext, is simply a non-starter. Why is anybody even talking about it?

It would probably save judges a lot of work if we abolished trial by jury, is anybody proposing to do that, too?

I dunno, Brett. Are you unaware of the serious limitations on habeas imposed by the Rehnquist Court, as well as the Republican Congress that passed the AEDPA?

That provision is listed among a collection of limits on the federal government; the article talks about "state prisoners."

Under the original Constitution, states weren't required to have trial by jury either.

Brett: This is a good question. The issue is whether the privilege extends to state prisoners convicted of crimes. As an historical matter, federal habeas was not available to state prisoners convicted of crimes until 1867 when Congress passed a law providing state prisoners a right to file a habeas petition in federal court. The Supreme Court has never held that the Suspension Clause applies to habeas petitions from state prisoners convicted of crimes. There is an ongoing debate among academics on whether the Fourteenth Amendment extends the privilege and therefore the protections of the Suspension Clause to state inmates.

This comment has been removed by the author.

"The Supreme Court has never held that the Suspension Clause applies to habeas petitions from state prisoners convicted of crimes."

Actually, in Slaughterhouse, while denying that the 14th amendment incorporated any of the Bill of Rights, Miller listed habeas as among the privileges and immunities it DID enforce against the states.

The Supreme court isn't going to get much opportunity to rule on the issue, until some effort is made to take the writ away from somebody. I'm hoping that lack of opportunity continues.

If federal judges are overburdened with work, maybe we could try repealing some laws... I'd start with the war on drugs.

Did Hoffman and King mention the legal issues, or was theirs just a policy recommendation?

"petitioners (who do not have a right to an appointed lawyer) raise a discrete set of legal claims": I think this underestimates the amount of work demanded by many habeas petitions. Yes, many petitioners do not have lawyers. But that isn't an indication that these briefs demand less time from chambers. The habeas petitions that I have seen are not tidy briefs with a "discrete set of legal claims." They are often meandering, long complaints, which may require a decent amount of work (if taken seriously) on the part of the judge or clerk to translate into legal claims and resolve.

Yes, by all means let's free up federal judicial resources for what really counts, i.e., corporate contractual disputes and diversity auto accident cases.

Jesus. It's so typical to go looking for "efficiency" by cutting the provision of resources to that segment of the populace with no lobbyists and no practical ability to defend their interests.

My comments seem lost. Okay.

In response to Brett, basically, that is not how the Supreme Court interpreted things when it directly came up. See, e.g., Munn v. Illinois (1877). As Justice Thomas noted in his P/I concurrence in the guns case, this "arguable" interpretation was not accepted.

I think it a sound interpretation but anyways we are not concerned about applying it against the states. We are concerned here about federal habeas, an extra security on top of state review.

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