A Crisis in Federal Habeas Law

Eve Brensike Primus

University of Michigan Law School

November 10, 2011

Michigan Law Review, Vol. 110, April 2012
U of Michigan Public Law Working Paper No. 257

Everyone recognizes that federal habeas doctrine is a mess. Broad change is necessary, but to be effective, such change must be animated by an overarching theory that explains when federal courts should exercise habeas jurisdiction. In their recent book, "Habeas for the Twenty-First Century: Uses, Abuses, and the Future of the Great Writ," Professors Nancy King and Joseph Hoffmann offer such a theory. Drawing on history, current practice, and empirical data, Professors King and Hoffmann find unifying themes that not only explain our past use of the Great Writ but also give guidance regarding how we should interpret the writ going forward.

Habeas for the Twenty-First Century is nuanced while still being thorough, and it explains fairly technical material in an engaging and interesting way. Its breadth, however, is also the source of one of its problems. Professors King and Hoffmann want both to identify the overarching themes that can explain habeas in all of its diverse forms and to make concrete proposals for reform that have a reasonable chance of being adopted. These two goals, however, are often in tension. What is politically feasible is not always consistent with their interpretive approach. Rather than admit this tension and explain why they choose one goal over the other, Professors King and Hoffmann sometimes stretch their definition of what constitutes a crisis worthy of habeas intervention in an attempt to make it fit their reform proposals.

This is particularly true in the context of their approach to federal review of state criminal convictions. In that context, King and Hoffmann use history to argue that habeas’s primary role is to intervene whenever a federalism crisis places the balance of power between the federal and state governments in jeopardy. Such a federalism crisis exists, they say, only when a state rejects federal law because it is federal. Nonetheless, King and Hoffmann’s own proposal for reform contains provisions that would allow state prisoners to file habeas claims, such as claims alleging actual innocence, even when there is no evidence that the states are hostile to these claims because of their federal nature. So if King and Hoffmann’s proposals for reform are sound, their statement of the circumstances in which federal habeas review is appropriate is too restrictive.

In this Review, I will argue that King and Hoffmann should expand their concept of what constitutes a crisis worthy of federal habeas intervention to include situations in which a state systematically violates criminal defendants’ federal rights or systematically fails to provide defendants with adequate opportunities to vindicate those rights. A state’s entitlement to autonomy and respect is at its nadir when the state routinely flouts federal law, whereas the federal interest in using habeas review to catalyze structural reform in such a case is at its zenith.

Number of Pages in PDF File: 23

Open PDF in Browser Download This Paper

Date posted: November 18, 2011 ; Last revised: January 20, 2017

Suggested Citation

Primus, Eve Brensike, A Crisis in Federal Habeas Law (November 10, 2011). Michigan Law Review, Vol. 110, April 2012; U of Michigan Public Law Working Paper No. 257. Available at SSRN: https://ssrn.com/abstract=1957797

Contact Information

Eve Brensike Primus (Contact Author)
University of Michigan Law School ( email )
625 South State Street
Ann Arbor, MI 48109-1215
United States

Feedback to SSRN

Paper statistics
Abstract Views: 542
Downloads: 98
Download Rank: 214,710