The abstract pretty much tells the story:
But I have now read the article and it's a pretty good read overall, particularly as to the current state of habeas corpus. For anybody interested in habeas, it's worth the time.
At the same time, I think the whole "end habeas corpus as we know it" movement to be a bit tiresome and disingenuous. This article as well as others that I have seen recently make an extremely persuasive case that habeas in its current state is broken. As a result, they say that it is habeas that is the problem, so let's restrict it further.
But why blame the victim? Habeas corpus is broken because IT HAS ALWAYS BEEN THE RIGHT'S INTENT TO BREAK IT. And that was not a very hard thing to do. What powerful figures over the past forty years, outside of a couple of liberal Supreme Court Justices, spent any capital fighting against the rollback of habeas? In contrast, it seems to have been a main goal of the Rehnquist Court to break habeas and it took the Republican majority less than two years after taking over in 1994 to get the AEDPA out there (no thanks to Bill Clinton). Obviously, it was pretty high up on their agenda, even if it didn't quite make it into the Contract Against, I mean, With America.
To say now that habeas is broken and it needs to be fixed is an easy thing to do. Who out there is going to claim that it isn't in a pretty bad state? To say it's broken is not particularly compelling. It's only compelling to read how broken it really is.
But the solution offered in this article -- restrict habeas even more and put all of our trust in the state courts -- is pretty illogical. It's a fox meet henhouse situation. Very good defense attorneys spend every working minute trying to get state courts to uphold defendants' constitutional rights. The state courts respond by finding ever more clever ways to get around it. Certainly, as the authors propose, it would be nice for money to be pumped into criminal defense. Maybe it will make a difference in the outcome of a few trials. But it won't cure the state courts' general disregard of constitutional rights. Contrary to the authors' belief that this is some kind of liberal complaint, it's a reality. Spend a few days in trial court, or before the Appellate Divisions, and you will see that these elected judges' main goal is to remain off the front page of the Post.
So it is one thing to say that habeas in its current state is broken. But its another to say as a concept that habeas corpus review in the federal courts is broken. I don't think it is. It remains necessary.
Because it remains necessary and important, it should be beefed up, not restricted. Sure I sound like a knee-jerk criminal defense attorney, but there can't be enough voices out there in defense of habeas. There sure are plenty out there saying that its broken.
Here are some pretty painless suggestions to make habeas review better: get rid of the standard of review -- its oppressive to both habeas petitioners and the federal judiciary who are forced to apply it. Ease some of the procedural restrictions. Or give federal courts more discretion in reviewing claims that do fall victim to some of the procedural restrictions. Maybe a plain or clear error standard should replace the incredibly difficult to meet cause-prejudice/miscarriage of justice standard. Or expand the miscarriage of justice standard to go beyond just innocence cases. Alter the retroactivity rules that currently are illogical and unfair.
I guess you can see where I am going with these suggestions. Rather than cry uncle to the habeas-haters, let's try and undo some of the major damage that has been done to habeas corpus review over the past 40 years.
At the same time, I am far from a pollyanna. Some of the procedural restrictions have some real purpose. Exhaustion comes to mind. And I am not even that much against the statute of limitations (but limiting it to one year is a bit oppressive).
On a macro level, habeas wouldn't be such a burden for the federal courts if there weren't so many state criminal defendants. Fix the criminal justice system and habeas won't be as big a burden on the federal courts. Stop using the criminal justice system to address every single societal problem. More funds to prosecutor's offices for training on how better to exercise prosecutorial discretion. Completely reform the way that the system handles drug cases. Decrease the amount of long-term incarceration for so many crimes. In the end, less people in custody=less habeas corpus petitions. Less a problem for federal courts.
Obviously, these types of macro fixes are a ways off, if they ever occur. So if we as a society want to use the criminal justice system to incarcerate so many people, I think we have no choice but to keep habeas as a viable avenue of review. It simply cannot be left almost exclusively to the state courts. Habeas corpus doesn't need to be robust, but it needs to be real.
UPDATE: For an interesting and timely discussion about the rise in the prison population, see this op-ed from Charles Blow in the New York Times.