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Abstract:
This Essay argues that federal habeas review of state criminal cases squanders resources the federal government should be using to help states reform their systems of defense representation. A 2007 empirical study reveals that federal habeas review is inaccessible to most state prisoners convicted of non-capital crimes, and offers no realistic hope of relief for those who reach federal court. As a means of correcting or deterring constitutional error in non-capital cases, habeas is failing and cannot be fixed. Drawing upon these findings as well as the Supreme Court's most recent decision applying the Suspension Clause, the authors propose that Congress eliminate federal habeas review of state criminal judgments, except for cases including certain claims of actual innocence, retroactively applicable rules, or the sentence of death. The federal government should leave the review of all other state criminal judgments to the state courts and invest, instead, in a new federal initiative to encourage improved state defense services, an approach that can deter and correct constitutional error more effectively than any amount of habeas litigation ever could.

habeas, public defender, post-conviction, AEDPA, Suspension Clause, innocence, ineffective assistance, representation, appeals

Abstract:
One of the key battlefields on which the modern war of federalism has been fought is federal habeas corpus. In the 1960's, led by Justice William J. Brennan, the Supreme Court expanded the availability of federal habeas for convicted state criminal defendants who claimed that their federal constitutional rights had been violated. This expansion was based on Brennan's fundamental distrust of state courts to vindicate federal rights. The practical impact of the expansion was felt most strongly in the special realm of capital cases, where extensive federal habeas review made it difficult for the states to implement the ultimate punishment. As soon as Justice William Rehnquist joined the Court in 1972, he set out to reverse the Brennan-led expansion of federal habeas. Over the course of his career, Rehnquist managed to roll back that expansion in almost every respect. Beginning with Wainwright v. Sykes (1977), which overturned the core of Brennan's famous habeas opinion in Fay v. Noia (1963), Rehnquist gradually succeeded in persuading the Court to adopt a narrower view of the role of the federal courts - one that was more deferential to the state courts, and more protective of the public's interest in punishing criminals. The Rehnquistian vision of limited federal habeas corpus ultimately prevailed on such issues as habeas jurisdiction, the right to counsel, procedural default, the role of actual innocence, harmless error, retroactivity, and the proper standard of review in habeas. The only area where Rehnquist failed to implement his vision of federal habeas was the scope of habeas review, and by the end, this lone failure may not even have mattered very much. Today, the law of federal habeas has returned to the way it was before the 1960's, and the ongoing fight over the death penalty has largely shifted from the federal habeas courts to the broader political and social worlds.

Rehnquist, federal habeas corpus, death penalty, supreme court