Thursday, September 02, 2010
The Cost of Habeas?
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'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.
"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.
"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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