In Defense of Non-Capital Habeas: A Response to Hoffman and King

Abstract

For decades, federal habeas corpus review of state court judgments has generated wide-ranging, sometimes heated, debate among judges, policymakers, and scholars. In their 2009 Essay, Rethinking the Federal Role in State Criminal Justice, Professors Joseph L. Hoffmann and Nancy J. King added their voices to the exchange, contending that federal habeas corpus review of noncapital state court convictions and sentences should, with narrow exceptions, be abolished. They contend that the expenditure of money, time, and effort necessary to provide review in such cases is no longer justifiable and that those resources should be redirected to creating a federal initiative for improving trial-level representation in which states could choose to participate.

This Article begins with a systematic examination of Hoffmann and King’s arguments for the abolition of noncapital habeas corpus review. It demonstrates that although state postconviction review systems may have evolved since the 1960s, federal habeas corpus continues to play an important role in encouraging meaningful state court review and providing a safety net for deserving prisoners whom the state courts have failed. It next explains that Hoffmann and King’s proposal for near-abolition of noncapital habeas review would be unlikely to yield substantial net reductions in habeas litigation, both because many prisoners (correctly or incorrectly) would invoke the statutory exceptions and because many others would litigate the adequacy of state postconviction review under the Suspension Clause. This Article then challenges the assumption that states would respond to the abolition of noncapital habeas review by voluntarily improving their own systems for delivering adequate trial-level representation absent an affirmative incentive to do so. Finally, it suggests an alternative set of reforms, beginning with reducing the United States’ extraordinarily high incarceration rate and modifying three areas of existing habeas law, to improve the efficiency and effectiveness of habeas corpus review in noncapital cases.