The present system made sense fifty years ago, but it no longer does. In the 1960s the Supreme Court employed two related strategies to force the states to bring their criminal justice systems into compliance with the fundamental ideals of equality and fairness guaranteed by the U.S. Constitution. First, it incorporated, one by one, most of the specific constitutional provisions from the Bill of Rights into the Due Process Clause of the Fourteenth Amendment, thus obligating states to honor those provisions in state criminal cases. State defendants could seek relief in the Supreme Court for violations of those incorporated federal rights by applying for a writ of certiorari from their state judgments. The second strategy was to expand the availability and scope of federal habeas review, enlisting the lower federal courts to supplement certiorari review in order to enforce these new constitutional rights.

The Court adopted this approach not because it was the best one but because, in the absence of federal legislative action, the Court had no choice. State judges were resisting enforcement of recently incorporated federal criminal procedure rights, and most states lacked effective postconviction review processes to address nonrecord constitutional violations such as jury selection error and prosecutorial misconduct. Expanding federal habeas review provided an incentive for the states to improve their own postconviction review processes and sent clear notice to defiant state judges that they could not deliberately ignore federal law.

Our current multilayered criminal justice system thus originated from a kind of historical accident, the result of institutional inactivity (by Congress) and institutional constraints (on the Court). Retaining that system might make sense today if the problems that gave rise to it persisted, but they do not. Retaining the current system might also make sense today if it represented an effective and efficient way of enforcing the Constitution’s commands in individual cases, but it does not.

The findings of an empirical study of federal habeas litigation completed in 2007 suggest habeas is an expensive but almost completely ineffectual remedy. For the vast majority of the more than two million people now incarcerated in America, the Great Writ is a pipe dream.

Most state defendants convicted of felony offenses have no practical access to federal habeas review, because habeas is limited to those “in custody” when they file, and prisoners must exhaust their state appeals and postconviction proceedings first. As a result, almost 30% of all noncapital habeas petitions were filed by inmates serving life sentences, even though only 1% of all prison sentences are for life, while only 12% of all noncapital habeas petitions were filed by those serving sentences of five years or less, even though that group represents the majority of those sent to prison.

Moreover, except in capital cases, those inmates who do manage to obtain federal habeas review can expect to lose. At the current rate found by the study, only an estimated sixty-five of the more than 18,000 petitions filed each year by noncapital petitioners will eventually be granted by district courts.

The study cannot tell us whether the incredibly low rate of habeas grants reflects a comparably low frequency of meritorious claims or whether there are many more habeas petitioners who deserve relief but do not obtain it. Yet any theory that the threat of habeas is effectively deterring constitutional error is implausible: Most state criminal defendants are short-termers with no access to federal habeas, a point that cannot possibly be lost on police, lawyers, and judges. And even in those cases where the defendant is likely to be in custody long enough to file a habeas petition and has not waived his rights via a plea bargain, grants of habeas relief are so infrequent, and so delayed, that they will make little if any difference to state actors in noncapital cases. Even a rare grant for procedural error will require only that the state conduct the trial, plea, sentencing, or appeal over again. Finally, any police officer, attorney, or judge responsible for the error, even if not long gone, will suffer no personal consequence if a writ is granted. So if the low grant rate in federal habeas cases actually reflects a correspondingly low number of state constitutional errors that require correcting, it cannot be the result of any significant deterrence produced by federal habeas review. And if the state courts are doing a good job on their own, independent of any habeas deterrence, then habeas is a colossal waste of resources.

Consider now the alternative argument: that the low habeas grant rate reflects the current failure of habeas courts to provide needed relief to deserving state prisoners. The best way to fix habeas, many scholars argue, would be to remove procedural restrictions on habeas relief and provide counsel so that prisoners can more effectively litigate their federal claims in a federal forum. But increasing the amount and slowing the pace of habeas litigation even further would be a political nonstarter without some corresponding benefit to the states. More fundamentally, it would not address the inherent limitations discussed above—that habeas is largely inaccessible to most of those convicted of a crime in this country and that it has virtually no deterrent impact on the particular state actors who are to blame for the violations.

Relying on habeas to enforce the Constitution also ignores another problem inherent in federal habeas: There is no easy way to deter the filing of meritless habeas claims without also discouraging potentially valid claims. The danger that at least some deserving constitutional claims will be swept away by the overwhelming flood of meritless ones is substantial.

Not only is habeas futile, it is expensive for both federal and state taxpayers. One out of every fourteen civil cases filed in federal district court is a habeas challenge by a state prisoner. Most of these cases are not summarily dismissed. Instead, the study found that litigation on procedural issues was commonplace before disposition, and noncapital habeas cases averaged eighteen docket entries per case, representing more than a third of the average number of docket entries in the capital cases included in the study. In most cases the state must write a motion or answer in response to the petition, which the study found included four different claims on average, many of which were amended, requiring a second response from the state. Processing the handwritten pleadings of pro se prisoners is more costly than the efficient electronic filing now required in other cases. Furthermore, half the cases were referred to magistrates for disposition, adding a duplicate layer of opinions and briefing before the case was completed. With more than 18,000 habeas petitions filed each year, states can count on winning almost every one of these cases, but they can also count on a significant expenditure of state dollars to defend them.

***

Any system of justice that expends so much effort to produce so little benefit deserves reconsideration. There is a better approach. We propose first that Congress amend the federal habeas statute so that habeas courts retain jurisdiction over only three categories of constitutional claims raised by state prisoners in custody pursuant to a state criminal judgment.

The first category would provide review of constitutional claims that have been rejected or refused in state court but are accompanied by a compelling showing of innocence. Cases of wrongful conviction justify the expenditure needed to allow habeas courts to provide a last-chance remedy. This category would be limited to cases in which the petitioner is able to bring forward newly discovered evidence to rebut his conviction.

A second category would allow for the postconviction enforcement of new constitutional rules that have been held by the Court to apply retroactively to cases already final on direct appeal. Without access to federal habeas review in such cases, a defendant whose direct appeal had concluded by the time the new constitutional rule was declared would be unable to benefit from the rule if the state courts provided no forum for the claim.

The third category would preserve habeas review in capital cases, allowing for the adjudication of any constitutional objection to the petitioner’s capital sentence. The proper scope of habeas in capital cases should be resolved separately from noncapital cases, given the fundamental differences between the two types of cases. Because the Court is continually changing the Eighth Amendment law regulating state capital cases, parties continue to need access to the lower federal courts in order to to work out the implementation of those limits.

Our proposal would dramatically reduce the amount of noncapital habeas litigation by state prisoners. But the point of reducing wasteful federal habeas litigation is not simply to conserve scarce resources. The point is to enable the reallocation of those resources in support of more effective means of ensuring compliance with constitutional rules. Congress should devote whatever can be saved by cutting back on habeas review—as well as additional funds—to a new federal initiative aimed at helping the states prevent and correct constitutional violations in their own courts.

***

Providing defendants with an effective criminal defense at the trial and appellate levels is a far better means of guaranteeing constitutional rights in criminal cases than post hoc habeas litigation, but state criminal defense systems are in crisis. Case-by-case litigation has failed, and will continue to fail, as a means of ensuring the right to counsel in noncapital cases. As a chorus of commentators has observed, the scant postconviction reversals under Strickland v. Washington¹ have had little or no impact on the pervasive pressures on state and county legislative bodies to limit funding for defense services. Systematic underfunding of criminal defense representation in the state courts persists, resulting in repeated and widespread breakdowns in defense representation in many states. This is a problem that habeas is woefully inadequate to address.

We support the creation of a new Federal Center for Defense Services, along the lines of the one first proposed by the ABA in 1979, that could administer matching grants and other financial incentives for state and local governments to improve their efforts to provide defense representation. Similar federal incentives have been useful in encouraging states to take on other criminal justice reforms, and existing state-level commissions on defense representation have been successful in using matching grants and other financial incentives to encourage meaningful funding increases at the local level. This progress, along with recent successes in some jurisdictions in legislating standards for parity of resources for prosecution and defense attorneys, suggests that the effort can work on a larger scale.

The new federal center would also be well situated to conduct comprehensive empirical research to identify the characteristics of effective defense representation on both a systemic and an individual level and to encourage reform through dissemination of that research. Another goal could include drafting standards for defense representation based on “best practices” research.

To be sure, the proposed shift in the federal role will not succeed if Congress simply cuts the budget of the judicial branch by the amount that it projects to save by limiting federal court habeas jurisdiction and simultaneously offers those dollars to the states with few strings attached. The fiscal tradeoff is but one aspect of the more comprehensive political shift in focus that is required from the back end to the front end of the criminal justice system.

But two features of our proposal make it a realistic possibility. First, our proposal does not require Congress to mandate that every state change its defense representation systems overnight, nor does it mean that Congress should condition the curtailment of habeas review in noncapital cases on a particular state’s current compliance with federal standards for improvement of defense representation. Instead, we propose a voluntary renewable grant program that would allow compliance standards to evolve gradually, as “best practices” develop based on innovations in individual states. Lasting systemic changes in state criminal justice cannot be legislated into existence overnight. Model alternatives could be allowed to emerge in a few states, then evaluated and modified for varying local conditions. At least when it comes to noncapital cases, so little benefit would be lost by cutting back on habeas review, and so much more could be gained by any shift of those resources toward encouraging and supporting improvements in state defense representation, that we need not adopt a quid pro quo arrangement that could pose an unwarranted political barrier to state reform efforts.

Proposing such radical restrictions on federal habeas review could, however, lead a state to curtail its own system of appellate and postconviction review in response, leaving state prisoners with no avenue to pursue relief for constitutional claims. The Due Process Clause would not prevent this, but if this was the state’s response, the Suspension Clause should bar the implementation of the drastic habeas restrictions we propose in that state.

The Suspension Clause, ratified in 1789 as part of the original Constitution, provides, “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.”² Although the Court has never squarely held that the Clause limits the suspension of federal habeas for state prisoners convicted of a crime, the Fourteenth Amendment, which broadened both the definition of federal citizenship and the reach of federal law, arguably extended the protections of the Clause to those incarcerated after conviction by the states.

Substantive restrictions on the scope of habeas can survive a Suspension Clause challenge only so long as an “adequate substitute” is available. As interpreted in Boumediene v. Bush,³ the Clause requires that any adequate substitute for habeas review must provide the prisoner with, at a minimum, “a meaningful opportunity to demonstrate that he is being held pursuant to ‘the erroneous application or interpretation’ of relevant law” and must provide the reviewing court with “the power to order the conditional release of an individual unlawfully detained—though release need not be the exclusive remedy.”⁴ In Boumediene, the Court struck down the military tribunal system set up for “enemy combatants” but emphasized that where the original detention proceedings themselves are more rigorous—“e.g., in post-trial habeas cases where the prisoner already has had a full and fair opportunity to develop the factual predicate of his claims”⁵—substituting very limited federal review for broader access to habeas might be permissible.

Limiting federal review of noncapital state criminal cases as we propose—to certiorari review by the Supreme Court plus habeas review of claims held retroactive or accompanied by a showing of innocence—will not violate the Suspension Clause so long as the states continue to provide not only an initial Due Process–compliant adjudication of guilt but also reasonable levels of state appellate and postconviction review. Under Boumediene, state judicial proceedings cannot be an adequate substitute for habeas, but those proceedings can provide the necessary context in which even a severely limited federal judicial forum, such as the one we propose, can nevertheless suffice as an adequate substitute for habeas. Conversely, if a particular state were to curtail its own appellate and postconviction review processes substantially, this analysis would lead to the conclusion that our proposed restrictions on habeas would amount to an unconstitutional suspension of the writ.

The Supreme Court has yet to use its powers under the Suspension Clause in precisely this way. But a speech by Justice Brennan in 1961 foreshadowed this line of reasoning. Justice Brennan articulated two different reasons for expanding federal habeas review for those serving state sentences: (1) defiance by state judges in the face of what they considered an unjustifiable incursion of federal law into the traditional domain of the states and (2) the lack of state postconviction proceedings and remedies adequate to adjudicate defendants’ constitutional claims. If either of these conditions were to recur in a particular state as a consequence of our proposal, the Court should find our proposed habeas restrictions to be a violation of the Suspension Clause as applied to criminal cases from that particular state. This would effectively restore full habeas review in that state.

The initial burden of constitutional challenges to a more restrictive statutory scheme should diminish quickly as the Supreme Court decides whether the review processes in various states provide sufficient judicial review to allow our proposed new habeas restrictions to satisfy the Suspension Clause. After all, the Court expeditiously resolved the Suspension Clause challenges to AEDPA,⁶ allowing the lower federal courts to dispose of such claims summarily. The analysis we propose also comports with the Court’s longstanding practice of exercising control over the scope of the writ, including its frequent adjustments of that scope in response to changing conditions.

Relying upon the Supreme Court as the ultimate authority to decide whether criminal defendants have a reasonable opportunity to litigate the constitutionality of their custody avoids the pitfalls of making statutory restrictions of habeas contingent on the states’ meeting new federal standards for judicial review. If Congress tried to write minimum standards for state appellate and postconviction review, it might overshoot what the Court would mandate under the Clause. Moreover, rather than dealing only with the constitutionality of the habeas statute as applied, courts would also have to determine the meaning of the statutory standards.

Suspension Clause jurisprudence is not well developed. The Supreme Court may not interpret the Clause as suggested here. The Court may conclude that the limits of the Clause do not depend upon variations in state judicial review processes. Or the Court might decide that the Suspension Clause only bars suspensions of the writ for those in federal custody, or that it protects only the post–Civil War statutory version of habeas, but not the expansions that originated with the Warren Court. Should the Court limit its own habeas powers in these ways, Congress should enact the same scaled-back version of habeas but should make the application of the habeas restrictions expressly contingent on a state’s willingness to provide adequate levels of appellate and postconviction review of criminal cases.

***

This Editorial addresses two problems: the federal government’s failure to develop an alternative to wasteful federal habeas review as a way to enforce constitutional criminal procedure rights in state criminal cases and the political and fiscal challenges facing elected state officials in providing adequate defense representation to their citizens. Our proposal goes to the root of each problem, eliminating ineffectual habeas review and presenting a new federal approach that directly addresses both of the challenges that have discouraged state and local efforts to comply with constitutional guarantees.

The proposal also addresses the political realities that make these two problems—the broken remedy and the unfulfilled right—so intractable. Many liberals do not trust state courts to protect individual rights adequately without robust habeas review. Many conservatives view any effort to improve defense representation as “soft on crime,” essentially electoral suicide. Reform stalls; as a result, neither the wastefulness of habeas nor defense underfunding gets addressed.

Our proposal offers a solution that responds to concerns from both sides of the political spectrum. For those who would reject our proposed habeas restriction as a withdrawal of the only hope for state prisoners to escape the oversights and misdeeds of state courts, we cite empirical evidence of the utter futility of habeas review today. For those who would prefer to enhance federal court oversight of state noncapital cases through the Great Writ, we explain why that vision will never be more than a fairy tale. For those who would argue that cutting back habeas would lead to the erosion of state judicial review as well, we map out a Suspension Clause analysis that would ensure that state prisoners continue to receive adequate judicial review of their constitutional claims. For those wary of being associated with any effort to improve indigent defense, we offer a win-win for the states. The proposal allows states to better utilize the funds they would otherwise spend defending noncapital habeas cases in federal court, while providing incentive grants to help them improve defense delivery. The new federal center will identify and promote best practices in indigent defense nationwide but will leave to each state the autonomy to take or leave what the federal center has to offer.

In the end, we envision a transformed three-tiered system of state criminal justice in which (1) the states provide higher-quality trial-level proceedings by improving the quality of defense counsel through the support, encouragement, and financial incentives of the proposed new federal center; (2) the state courts, both on direct appeal and in state postconviction proceedings, continue to fulfill their obligation to provide reasonable levels of review of claims of constitutional error in individual state criminal cases; and (3) the federal courts undertake two subsidiary and supporting roles: (a) the lower habeas courts entertain only the special categories of habeas claims identified above, in which case-by-case federal review would be most valuable; and (b) the Supreme Court, using its authority under the Suspension Clause, ensures that the states do not abdicate their responsibility to provide reasonable levels of judicial review.

What is the best way—the most effective and most efficient way—for the federal government to ensure that federal constitutional rights are observed in state criminal proceedings? In our view, the current system cannot possibly be the right answer. Instead, it is time for a new paradigm, one that relies on state courts to do the heavy lifting of case-by-case judicial review but uses the leadership and financial strength of the federal government to bring about a sea change in state systems of defense representation.

Acknowledgments:

Copyright © 2009 New York University Law Review.

Joseph L. Hoffman is a Professor of Law at Indiana University School of Law.

Nancy J. King is a Professor of Law at Vanderbilt University Law School.

A full-length version of this Editorial was published in the New York University Law Review as Joseph L. Hoffmann & Nancy J. King, Rethinking the Federal Role in State Criminal Justice, 84 N.Y.U. L. Rev. 791 (2009).

This Legal Workshop Editorial is based on the following Law Review Article: Joseph L. Hoffmann   Nancy J. King, Rethinking the Federal Role in State Criminal Justice, 84 N.Y.U. L. REV. 791 (2009).

The role habeas corpus is to play in redressing ineligibility violations remains a conspicuously open question.  That question, in turn, implicates some of the most fundamental disagreements over the Supreme Court’s authority over the writ’s function, as well as over the related “actual innocence” laws that often determine the outcome of federal habeas litigation.  Existing ineligibility rules derive largely from actual innocence law applicable to the more familiar concept of “crime innocence”—the idea that, colloquially speaking, the petitioner “wasn’t there, and didn’t do it.”  A death ineligibility challenge, by contrast, does not dispute that the offender committed the murder for which he was convicted; it disputes only the constitutionality of the capital sentence.

The contemporary habeas model’s arc is familiar to habeas scholars.  Modern habeas restrictions are largely responses to three developments during the Warren era: new Fourth, Fifth, and Sixth Amendment procedural rights; their application against states through the Fourteenth Amendment; and the vesting in state prisoners of a federal habeas remedy.  Habeas activity swelled as offenders went to federal court to relitigate procedural claims that they had lost in state proceedings.  Many of the newly cognizable claims had no bearing on the guilt or innocence of the defendant.  These developments provoked landmark critiques by Professor Paul Bator and Judge Henry Friendly, which argued that courts should curtail such litigation dramatically.  Both the Supreme Court and Congress gradually incorporated the ideas appearing in those critiques into habeas law.

Death ineligibility claims disrupt this established model of habeas adjudication.  They are not purely procedural challenges, but they are not challenges to a conviction’s validity.  The number of offenders in which a death ineligibility claim vests has increased dramatically and will only grow as the Court declares new categories of prisoners—probably those exhibiting some sort of diminished capacity—exempt from capital punishment.  In light of important distinctions between death ineligibility challenges and the claims upon which existing law is premised, the Supreme Court should reformulate habeas relief available to categories of offenders that may not be executed under the Eighth Amendment.

 
I.
Innocence in Habeas Law

The writ of habeas corpus is a civil, post-conviction remedy with roots dating back to fourteenth century English common law.  The United States Constitution forbids Congress from suspending the writ except during periods of invasion or rebellion.  Congress statutorily authorized federal courts to issue habeas relief to federal prisoners in 1789, and it made the writ available to state prisoners at the inception of Reconstruction.  Modern habeas rules are a creature of common, statutory, and constitutional law.  The most recent legislation is the Antiterrorism and Effective Death Penalty Act (“AEDPA”), which altered or enacted several key features of current habeas law.  Capital prisoners may use federal habeas proceedings to attack either a conviction or a sentence.

After Brown v. Allen (1953) established definitively that federal habeas jurisdiction included authority to hear challenges to procedurally sound state trials, Professor Paul Bator and Judge Henry Friendly produced landmark scholarship that has shaped the conservative position on habeas for a half-century.  Professor Bator emphasized the epistemic limits of human inquiry and argued that the criminal justice system ensures correctness by proxy of reliable procedure.  Judge Friendly’s central thesis was that innocence should be the touchstone of any decision to disrupt state criminal process.

“Actual innocence” claims appear in two analytic variants.  The first is as a “gateway claim,” which is asserted to overcome a procedural defect in a habeas petition.  Emboldened by theories that habeas relief should be reoriented towards innocence (Judge Friendly) and circumscribed by the epistemic limits of human inquiry (Professor Bator), the Court and Congress began to impose procedural obstacles to relief.  Restrictions apply to claims not properly presented to state courts (“defaulted claims”), claims presented in prior federal petitions (“successive claims”), claims that were not (but could have been) presented in prior federal petitions (“abusive claims”), and claims that do not comply with the federal statute of limitations (“untimely claims”).

Concurrently, the Court developed “gateways”—showings that overcome the procedural restrictions.  Although the gateways’ contents have largely converged, they originally derived from different authority and exhibited different formulations.  All of the gateway formulations, before they were narrowed, would have encompassed death ineligibility claims had such claims been cognizable at that time.

A freestanding innocence claim, the second analytic variant of an actual innocence challenge, alleges a prisoner’s innocence, but not an accompanying constitutional violation.  Whether a freestanding innocence claim is even cognizable on federal habeas review remains an open question.

Under the habeas statute, prisoners may obtain habeas relief only for constitutional violations, and the Court has wrestled with the question of which constitutional provision a freestanding crime innocence claim invokes.  If a freestanding innocence claim states a constitutional violation, then it is cognizable under the habeas statute.  The habeas statute, however, unambiguously imposes all sorts of remedial limits on meritorious claims.  The question of whether a federal court must grant relief naturally arises whenever a routine restriction on the remedy (such as the statute of limitations) is applied to a potentially meritorious innocence claim.

The Court has been unable to resolve whether freestanding crime innocence challenges assert claims that may be characterized as constitutional, having avoided the question in Herrera v. Collins (1993) and on at least three occasions in the last five years.  By contrast, ineligibility claims are anchored uncontroversially in the Eighth Amendment, and courts need not decide the issue of whether habeas review may be used to redress arguably non-constitutional claims.

 
II.
Death Ineligibility

Furman v. Georgia (1972) effectively invalidated almost all existing state capital sentencing schemes.  In the four years after Furman, at least thirty-five states passed new capital sentencing statutes, many of them bifurcating capital trials into guilt and punishment phases.  Every state that retains the death penalty now conducts a separate punishment phase.

Under post-Furman statutes, states will not impose death without proof of statutorily defined aggravating circumstances, and the first death ineligibility litigation grew out of these sentencing requirements.  In Sawyer v. Whitley (1992), the Supreme Court held that evidence offered to disprove the existence of statutory aggravators could satisfy the innocence gateway applicable to procedurally defaulted claims.

I refer to instances where an offender argues that he would not satisfy any statutory aggravators as “paradigm” ineligibility claims for two reasons: First, because Sawyer challenges were, until recently, the most common type of ineligibility claim.  Second, because they invite re-litigation of fact questions resolved by a jury and subject to evidentiary decay, they fit neatly within the familiar critiques of the Warren Court’s habeas jurisprudence.  Because a paradigm ineligibility inquiry is in many respects similar to that conducted for more familiar procedural and crime innocence claims, the controlling ineligibility law became a feature of actual innocence jurisprudence uneventfully.

For my purposes, the most important non-paradigm ineligibility claims are the following: a claim under Atkins v. Virginia (2002) that an offender may not be executed because he is mentally retarded, a claim under Ford v. Wainwright (1986) and Panetti v. Quarterman (2007) that he is not competent to be executed, and a claim under Roper v. Simmons (2005) that he may not be executed because he was a minor when he committed the offense.  Entertaining ineligibility claims does not compromise the traditional interests promoted by post-Bator/Friendly habeas law.

Professor Bator and Judge Friendly both questioned the prudence of allocating scarce institutional resources to redundant federal habeas inquiries.  Non-paradigm ineligibility claims are not well suited to these resource-based critiques.  First, many such challenges cannot be litigated at trial or on direct review.  Second, when the Court recognizes an ineligibility category, many qualifying offenders will already be on death row.  Third, there are structural reasons to believe a crucial assumption of Judge Friendly and Professor Bator—that state process is effective—simply does not hold in the death ineligibility context.  Fourth, most empirical data suggests that procedural bars do not diminish the amount of habeas litigation; all that happens is that courts divert resources to procedural questions.  Finally, choking off habeas review of ineligibility claims could require the Supreme Court to expend valuable resources avoiding unconstitutional executions by scrutinizing claims on its direct review of state collateral proceedings.

Both Professor Bator and Judge Friendly emphasize an interest in the offender’s rehabilitation.  Setting aside the powerful argument that incarceration does not promote rehabilitation generally, rehabilitation cannot logically be a penal objective of a death sentence because that sentence necessarily means the capital offender will not ever return to society.

Judge Friendly and Professor Bator both express concerns about evidence becoming stale over time.  The argument also makes sense for paradigm ineligibility claims, which usually require a court to consider the impact of lay witness testimony on statutory aggravators.  Non-paradigm ineligibility challenges, however, do not generally involve such decaying evidence.  Roper challenges allege that the offender was a juvenile, and the evidence does not degrade.  Atkins challenges assert mental retardation, a clinical diagnosis (perhaps more) easily made at the time of the habeas challenge.  Ford competency challenges seek relief that cannot be adjudicated at trial at all.  Moreover, in all of these contexts, relief does not require a new trial; it only requires a reduction to a life sentence.

 
III.
Failures of State Process

One of the central conceits of modern habeas law is the sufficiency of state process.  If state trials, post-conviction review, and clemency can ensure that states do not execute ineligible offenders, then one might argue that there is no need to worry about how federal habeas law affects these claimants.  Unfortunately, state process is unlikely to adequately protect such offenders’ rights.

First, trials are inherently incapable of protecting the rights of offenders with premature ineligibility claims, such as those involving an offender’s competence to be executed.  Second, the Supreme Court may not have yet recognized the relevant constitutional claim when the state court sentences an offender.  Third, the tests certain states apply to ineligibility claims deviate significantly from the clinical standards used in federal court.  Finally, there are local political pressures in state capital trials that are absent in a federal forum: state judges are generally either appointed by elected governors or are elected themselves, and, in many death penalty jurisdictions, rules against executing certain categories of offenders may be very unpopular.

After a defendant’s conviction becomes final, state prisoners must pursue state post-conviction remedies before seeking federal habeas relief.  Death ineligible offenders are often subject to systemic or idiosyncratic state procedural bars.  There is no federal right to a lawyer during state post-conviction review, which is notoriously complex.  Even if a prisoner does secure counsel, there is no mechanism to ensure that such representation is constitutionally adequate.  The federal statute of limitations is not tolled during the preparation of state post-conviction applications.  Moreover, familiar political pressures undermine post-conviction adjudication.

The most frequently invoked argument for the sufficiency of state corrective process involves the availability of clemency.  Clemency authority includes the power to commute sentences, which is roughly the relief sought by ineligibility claimants.  The power usually vests in a governor, although in some states the governor shares this power with an executive-appointed administrative board.  Unlike judicial process, clemency lacks both formalized procedure and substantive standards.  The absence of red tape means that there are no procedural safeguards, and the lack of substantive standards means that clemency may be denied for any reason.  There is no judicial review of a clemency decision.  There are serious problems with the argument that clemency is a safety valve for failures in ineligibility adjudication.  Because clemency power vests either in a governor or in a board appointed thereby, the decision occurs in the most political climate imaginable.  The calculus necessarily involves a number of factors other than the merit of the constitutional claim: the lawyers’ political affiliations and ambitions, the status of the victim’s family, the proximity to a gubernatorial election, and the perception that a governor is too soft on crime.  Mentally ill and mentally retarded offenders fare particularly poorly in clemency proceedings.

 
IV.
Configuring Ineligibility Doctrine

The salient ineligibility question involves how courts and Congress may limit habeas as a remedy for state violations.  Habeas law is, after all, replete with rules that frustrate relief for meritorious claims.  I submit that the Court is unlikely to actually constitutionalize entitlement to the habeas remedy for a variety of reasons beyond the scope of this shortened Editorial, but that it may nonetheless avoid unconstitutional executions by interpreting habeas rules in favor of ineligible claimants whose challenges appear in procedurally defective petitions.  The license to engage in such interpretation is well established, as the Court has historically ignored restrictive statutory wording and has emphasized its common law authority to shape the writ’s function.

Section 2244(b)(1) states that all successive claims shall be dismissed.  Section 2244(b)(2) provides for roughly similar treatment of abusive claims, but with an exception for clear and convincing proof that an offender is not guilty.  On first blush, AEDPA therefore appears to have eliminated relief for any successive claim and winnowed the abusive claim gateway down to a pure crime innocence inquiry.  In order to avoid the Suspension Clause and procedural due process issues, however, courts may nonetheless construe AEDPA to allow merits consideration of ineligibility claims in successive petitions.

The Supreme Court has a rich history of ignoring potentially restrictive wording when interpreting the habeas statute’s limits on abusive and successive claims.  For example, in 1966 Congress eliminated any statutory reference in § 2244(b) to “the ends of justice,” but Kuhlmann v. Wilson (1986) continued to apply that exception to successive claims.  Nor have federal courts been bashful about interpreting AEDPA’s facially severe limits in favor of petitioners.  Even the Supreme Court has highlighted the absurdity of applying § 2244(b) to a Ford claim in a prior petition that was dismissed as premature.

Section 2244(d)(1) specifies the “trigger dates” for the one-year limitations period on filing federal habeas petitions.  Section 2244(d)(2) tolls the limitations period during state post-conviction proceedings.  Whereas § 2244(b)’s successive petition limits have common law antecedents, the statute of limitations does not.  There is no statutory exception either for crime innocence or for death ineligibility.  Because Atkins has forced the issue, the ineligibility question is only now percolating in appeals courts.

Although the Supreme Court has never formally affirmed the idea, every appeals court to consider the issue has recognized that events not specified in the statute may equitably toll the statute of limitations—usually upon a showing of due diligence and extraordinary circumstances.  The circuits divide on the question of whether a showing of crime innocence equitably tolls the statute of limitations, with several suggesting that the rule applies in order to avert Suspension Clause problems.

In the death ineligibility context, questions of equitable tolling most frequently arise in connection with Atkins and Ford claims.  Several circuits equitably toll the statute of limitations once a prisoner shows that he is not competent to be executed, and others toll the statute only once the petitioner shows a causal connection between his mental condition and his failure to file a timely petition.  The result of such confused treatment in the appeals courts, and of particularly harsh treatment in the Fifth Circuit (which includes the Texas capital docket), is that many offenders with legitimate ineligibility challenges will not have the merits of their claims entertained in federal court.  Future litigants may persuade courts to apply equitable tolling to avoid Suspension Clause issues—perhaps automatically upon a colorable showing of ineligibility.  In Suspension Clause and equitable tolling jurisprudence, courts have the two concepts they would need to undertake constitutional avoidance: a constitutional provision that undermines a literalist statutory interpretation and a plausible alternative construction.

Our existing habeas corpus regime is largely informed by critiques of Warren era litigation, which are not well suited to ineligibility adjudication.  Under the prevailing habeas model, offenders with meritorious ineligibility claims may be executed because the petition containing their claim is procedurally defective.  By invoking the Suspension Clause, equitable principles, and the canon of constitutional avoidance, federal courts may nonetheless be able to avert state executions that the Eighth Amendment categorically forbids.

Acknowledgments:

Copyright © 2010 Cornell Law Review.

I would like to thank Susan Bandes, John Blevins, David Dow, Brandon Garrett, Jim Marcus, Stephen Schulhofer, David Shapiro, Jordan Steiker, Jared Tyler, and Larry Yackle for various forms of input during the drafting process. I would also like to thank participants in the NYU School of Law Lawyering Colloquium for their feedback on several versions of this manuscript. Finally, I am grateful to Mary Kathryn Martin and Kirstin O’Connor for their research assistance. In fairness to the reader, I should disclose that I represent or represented several of the mentally retarded claimants involved in eligibility cases discussed herein.

Lee Kovarsky is Acting Assistant Professor at New York University School of Law.

This Legal Workshop Editorial is based on the following Law Review Article: Lee Kovarsky, Death Ineligibility and Habeas Corpus, 95 CORNELL L. REV. 329 (2010).

Modern habeas law is predicated on the assumption that a state prisoner seeking habeas relief is attacking the legality of his confinement by alleging a constitutional error in the decision that led to his incarceration. Federal habeas, in other words, provides collateral review of earlier rulings by state courts. But almost 20 percent of federal habeas petitions filed by state prisoners do not challenge state court judgments. They attack instead the constitutionality of administrative actions by state prison officials or parole boards, taken long after the petitioner’s conviction and sentencing.

We focus on these sentence-administration claims: challenges to state administrative decisions that affect how much of a sentence a prisoner must actually serve. These claims do not question the validity of the sentence itself or the underlying conviction. Instead, they contest decisions that parole or corrections officials make after conviction and sentence, including the revocation of supervised release or parole, the denial or deferral of release on parole, or the revocation (for misconduct) of earned good-time credits. A prisoner challenging one of these administrative decisions typically alleges that he was denied his federal due process rights at the hearing leading to the decision.

Sentence-administration claims are neither fish nor fowl: unlike most habeas petitions, they do not challenge state court convictions or sentences; unlike most other prisoner litigation against corrections officials, they do not attack conditions of confinement. This misfit has created two problems. First, the habeas remedy overlaps with the federal cause of action for civil rights violations, 42 U.S.C. § 1983. Courts must decide which statutory scheme to apply, and existing doctrines governing that choice are both theoretically and practically unsound. Second, to the extent that the habeas statute applies, it is designed to structure federal court review of state court judgments and is therefore ill suited for review of actions by prison administrators. Thus, courts reviewing administrative actions under the rubric of habeas corpus are trying to squeeze square pegs into round holes.

The existing patchwork of mismatched laws poorly serves prisoners, state corrections systems, and the federal judiciary. In some states, sentence-administration claims constitute more than a third of all habeas petitions—and in Indiana, they made up more than half of the federal habeas petitions in a random sample of those filed in 2003 and 2004. This litigation is also unproductive: a nationwide study found that only about one-third of 1 percent of noncapital habeas petitions filed received any relief. It is time for Congress to respond directly. And despite the depth and breadth of the problems with existing law, we believe they can be remedied with a few simple statutory changes.

 
I.
The Sources of the Problem

Two statutory schemes potentially govern sentence-administration claims by state prisoners. First, claims alleging unconstitutional conduct by governmental actors (including prison and parole officials) fall within the scope of 42 U.S.C. § 1983, the general civil rights statute, as modified by the 1996 Prison Litigation Reform Act (PLRA). Second, any prisoner “in custody in violation of the Constitution” may bring a petition for a writ of habeas corpus, under statutory provisions recently amended by the Antiterrorism and Effective Death Penalty Act (AEDPA). The differences between these two complex statutory schemes give rise to the problems we deal with here.

The interaction between the two statutory schemes, however, is not the sole cause of the problem. The difficulties plaguing sentence-administration claims evolved out of the combination of six significant legal developments that now interact in ways that neither Congress nor the courts anticipated.

First, in the 1970s, the Supreme Court began expanding prisoners’ rights under the Due Process Clause. In three landmark cases, the Court recognized a “liberty interest” in release from confinement, allowing prisoners to challenge administrative decisions delaying their release. Importantly, however, the cases were limited to states in which the sentencing regime set a presumptive release date. If release (including release on parole) was within the discretion of the state, then prisoners had no liberty interest and could not challenge decisions that delayed their release.

The second legal change sprang from this identification of a liberty interest in release. In a pair of cases, Preiser v. Rodriguez (1973) and Wolff v. McDonnell (1974), the Court held that a prisoner could challenge the deprivation of good-time credits under § 1983 only if he did not seek relief that would automatically result in an earlier release. To hold otherwise, the Court reasoned, would allow prisoners to evade the procedural restrictions that Congress had imposed on habeas relief. Thus, a prisoner could seek damages or prospective relief under § 1983, but had to use habeas if he sought restoration of good-time credits.

In the 1970s, paroling authorities in most states determined if and when state prisoners would be released on parole. Prisoners therefore had no constitutionally protected expectation of release at any particular time prior to the termination of their maximum sentence and thus could not bring suit under either § 1983 or habeas. The third development contributing to the current problem was a nationwide shift (primarily during the last decade of the twentieth century) to mandatory-release systems with determinate sentences. In a mandatory-release system, unlike earlier systems that left the timing of release entirely to the discretion of the paroling authorities, a prisoner is presumptively entitled to release upon the expiration of his minimum term. Any denial or deferral of release, or any disciplinary action that results in the deprivation of good-time credits, triggers due process requirements because it deprives the prisoner of a liberty interest. Courts must then decide whether § 1983 or habeas provides the cause of action to vindicate that interest.

The shift from discretionary to mandatory release laws was accompanied by another important development. Beginning in the 1990s, the prison population changed in three ways that inevitably produced a larger proportion of sentence-administration claims. There were more state prisoners, they served longer terms on average, and a growing percentage of them were “violators” coming back to prison after their parole had been revoked. Together, these increases led to more administrative decisions and a greater likelihood that prisoners would be challenging the decisions of prison officials rather than of courts.

Two final developments sharpened the distinction between § 1983 claims and habeas claims, making it both more difficult to place sentence-administration claims in the right statutory box and more difficult to adjudicate them under habeas. First, in Heck v. Humphrey (1994) and Edwards v. Balisok (1997), the Court refined the Preiser doctrine to exclude claims from § 1983 if “a judgment in favor of the plaintiff would necessarily imply the invalidity of his conviction or sentence.” This necessitated a determination at the outset of the suit whether particular relief—for example, a demand for a new disciplinary hearing because of alleged constitutional defects in the challenged hearing—would necessarily imply the invalidity of the first disciplinary hearing and thus require the restoration of good-time credits and shorten the sentence.

Finally, in 1996 Congress enacted the Antiterrorism and Effective Death Penalty Act (AEDPA), imposing several new requirements on habeas petitions. Congress did not anticipate the difficulties that the new requirements would create for sentence-administration challenges because at the time it enacted AEDPA, most of the other problem-causing changes had not yet occurred or were still in the early stages.

 
II.
The Problem: Doctrinal Chaos

The first problem with the current regime is the line drawn by Heck and Edwards. The Court has never adequately explained why prisoners who are not seeking release as a remedy should nevertheless be required to bring their claims in habeas, nor has it clearly defined the difference between claims that necessarily imply the invalidity of the sentence and claims that do not.

In the cases from Preiser to Edwards, the Court essentially distinguished between claims of unconstitutional incarceration and claims of other unconstitutional acts by prison administrators. Forcing claims of unconstitutional incarceration into habeas treats them less favorably and subjects them to less federal oversight than other constitutional claims against prison administrators. But treating claims of unconstitutional incarceration stemming from actions by state prison officials less favorably than other constitutional claims against the same defendants—and on par with claims of unconstitutional incarceration pursuant to a court judgment—departs from three fundamental principles that are reflected in many other doctrines: (1) that similar claims by state and federal prisoners have similar access to judicial review; (2) that federal courts are more reluctant to interfere with the judgments of state courts than with the actions of other, nonjudicial state actors; and (3) that deprivations of physical liberty are considered the most egregious invasions of liberty.

The Heck distinction is also virtually impossible to apply. In Wolff, the Court allowed a § 1983 challenge to disciplinary hearing procedures that denied the prisoner notice, a written statement of the factual findings, and the right to call witnesses and present documentary evidence. But in Edwards, the Court held noncognizable under § 1983 a claim that disciplinary proceedings were unconstitutional because the hearing officer “concealed exculpatory witness statements and refused to ask specified questions of requested witnesses.” There is not a lot of daylight between these two claims, and lower courts have understandably had difficulty locating the dividing line.

In Wilkinson v. Dotson (2005), the Court made matters worse. The Court found challenges to particular parole hearings cognizable under § 1983 because a favorable ruling would not necessarily imply the invalidity of the prisoners’ continued incarceration but would at most entitle them to new, constitutionally adequate, parole hearings. At those hearings, the prisoners still might not succeed in gaining early release.

Unfortunately, almost every case can be described as both satisfying and not satisfying the Wilkinson standard: if the prisoner wins the procedural challenge, it means both that the first hearing was constitutionally invalid (and thus that the result of the hearing was invalid) and that the plaintiff is entitled to a new, constitutionally adequate, hearing. It is no wonder that some lower courts have:

Disallowed any § 1983 challenge to disciplinary proceedings that resulted in sanctions affecting the amount of time served, in direct conflict with Wilkinson.

Allowed any § 1983 challenge that sought damages for defective procedures rather than for the incorrect result of a hearing, in direct conflict with Edwards.

Held some challenges to the trial itself cognizable under § 1983 on the theory that the jury might still have convicted the defendant, in direct conflict with Heck.

Distinguished between § 1983 and habeas by suggesting that challenges to generally applicable procedural rules fall on the Wilkinson and Wolff side of the line and errors in particular hearings fall on the Edwards side of the line—and still reached conflicting results.

Divided over how to treat mixed claims, in which a procedurally inadequate hearing resulted in the imposition of both a sanction with durational implications and a sanction without durational implications.

The second problem with the current regime is that the habeas corpus statute and judicial interpretations of it were designed for collateral review of state judicial decisions. Applying habeas doctrines to suits challenging state administrative decisions creates a series of mismatches. Since AEDPA was enacted, courts have divided over the application of at least five specific aspects of habeas review of sentence-administration decisions.

First, courts cannot agree on the jurisdictional basis for habeas petitions raising sentence-administration claims. Section 2241 applies to any person in custody “in violation of the Constitution or laws or treaties of the United States.” Section 2254 applies to those “in custody pursuant to the judgment of a State court.” Prisoners who raise sentence-administration challenges can be characterized as both within and outside the § 2254 language: the initial decision to incarcerate the inmate is pursuant to a state court judgment, but the challenged decision, to keep him incarcerated, is not. Courts have therefore divided over whether these challenges should be brought under § 2241 or § 2254.

The jurisdictional basis matters because other provisions of AEDPA explicitly apply to § 2254 but not to § 2241. Remarkably, however, the resolution of this question actually makes little difference in which restrictions courts apply. The Seventh Circuit insists that sentence-administration petitions be filed under § 2254, then refuses to apply many of the statutory restrictions that govern other § 2254 cases. The Tenth Circuit insists that these petitions be filed under § 2241, then applies the restrictions governing § 2254 cases.

Courts have also disagreed about whether (and how) to apply the statute of limitations in § 2244(d)(1), which by its terms applies only to prisoners “in custody pursuant to the judgment of a State court.” Statutory language aside, the goals of a statute of limitations are not served by applying it to sentence-administration claims. Some circuits apply the bar to all petitions, one does not apply it to petitions challenging state administrative decisions, and one has suggested distinguishing between administrative decisions that reincarcerate a prisoner who was previously released and decisions that delay the initial release of a presently incarcerated prisoner. Nor can courts agree about when the limitations period begins to run.

A third problematic AEDPA provision is the bar against successive petitions, § 2244(b). By its terms the bar applies only to applications under § 2254, and thus only to prisoners “in custody pursuant to the judgment of a State court.” Because § 2244(d)(1) uses the same language, one might expect the successive-petition bar and the statute of limitations to apply to the same cases. Instead, the Seventh Circuit has held that the successive-petition provision, but not the statute of limitations, applies to sentence-administration challenges; the Second, Fifth, and Tenth Circuits apply the statute of limitations provision, but not the successive-petition bar.

And those courts that apply the successive-petition provision also define “successive” differently. They disagree about when a petition raising a sentence-administration claim is “successive” to a petition challenging the original conviction or sentence, or to a petition challenging a similar but separate sentence-administration decision.

Courts also divide about the applicability of § 2253(c)(1)(A), which requires a petitioner to obtain a certificate of appealability before appealing orders in a habeas corpus proceeding “in which the detention complained of arises out of process issued by a State court.” Four circuits apply both § 2253 and § 2254, disregarding the difference in statutory language. The Tenth Circuit agrees that § 2253 governs sentence-administration claims even though it continues to maintain that § 2254 does not. The Seventh Circuit holds that although § 2254 establishes jurisdiction for sentence-administration challenges because “custody” in such cases is “pursuant to a state court judgment,” the “detention” of a prisoner challenging the administrative decision that is keeping him incarcerated “arises out of” that administrative decision; therefore, no certificate of appealability is required. The Ninth Circuit similarly does not require a certificate.

Finally, there is the question of procedural default. AEDPA requires that a prisoner exhaust available state remedies, both administrative and judicial. But what happens if a prisoner fails to present his sentence-administration claim to a state court at the time (or in the manner) specified by state law and the state court thus refuses to consider that claim? In typical habeas petitions challenging the constitutionality of a state criminal judgment, such a claim is considered procedurally defaulted, and will not be reviewed by a federal court unless the petitioner can show either (1) cause for his default and prejudice from the absence of federal court review or (2) that it is more likely than not that the constitutional violation resulted in the conviction of an innocent person (known as the “miscarriage of justice” exception). Both of these exceptions are difficult to apply to sentence-administration claims. Arguably, the miscarriage of justice exception has no meaning in this context because it requires a showing that the challenged action led to the conviction of an innocent person. Nevertheless, the Tenth Circuit has extended the miscarriage of justice exception to this context, considering not whether the petitioner may be innocent of the underlying crime, but whether the petitioner may be innocent of the prison misconduct that led to the disciplinary sanction.

 
III.
The Solution

We argue that instead of the current regime, cases brought by prisoners should be divided into three categories: sentence-imposition claims, prison-conditions claims, and sentence-administration claims. Ordinary habeas doctrines should apply to sentence-imposition claims; ordinary § 1983 doctrines (as modified by PLRA) should apply to prison-conditions claims; and a new legislative scheme should be created for sentence-administration claims.

To categorize the cases, courts should ask three questions. First, was the challenged decision made initially by a state court or by a state administrator (such as a prison or parole official)? This question divides prisoner cases into two groups: those that attack a state court’s imposition of sentence and all other cases. If the prisoner is not attacking the imposition of sentence, the second step is to ask whether the administrator’s decision affected the duration of incarceration. This step subdivides the cases attacking administrative decisions into two groups: sentence-administration claims (affecting duration) and prison-conditions claims (not affecting duration). Finally, for sentence-administration claims, the court should ask whether the state provides judicial review of the initial decision. Graphically, the scheme looks like this:

The key to this proposal is that it substitutes for the difficult Heck question about the potential effect of a federal court judgment two easy questions—who made the challenged decision and what effect did it have on the length of incarceration? It also solves the square-peg problem by treating sentence-administration claims as a separate category.

We are left only to specify how courts should treat sentence-administration claims. Because federal review of administrative decisions affecting the length of custody should be at least as rigorous as, and perhaps more rigorous than, federal review of administrative decisions affecting only the conditions of custody, the baseline for these challenges should be § 1983 and PLRA rather than habeas.

But adopting § 1983 wholesale creates disincentives for states to establish, or maintain, their own judicial review of state prisoners’ administrative complaints. Thus we ask the third question, treating sentence-administration claims differently depending on whether they are reviewable in state court. If they are not, the § 1983 baseline should apply. When a state does provide judicial review of the sentence-administration claim, however, a more deferential approach—containing elements of both PLRA and habeas—is appropriate.

Thus, for sentence-administration claims for which the state does not provide judicial review, courts should apply:

The filing deadlines that courts impose in § 1983 cases, instead of AEDPA’s statute of limitations;

The same res judicata rules for civil litigation that now control repeated challenges to the same administrative decisions in § 1983 litigation, instead of AEDPA’s successive-petition provisions;

The presumptive right to appellate review of an adverse decision of the district court, as in any § 1983 case, instead of the certificate of appealability required by AEDPA; and

The exhaustion and procedural default rules that courts use in cases filed under PLRA, instead of the habeas procedural default rules.

When a state does provide an opportunity for judicial review of a sentence-administration claim, collateral review in federal court need not be as exacting. In that case, AEDPA provides a useful baseline, modified to avoid the mismatches we have identified.

Of the four habeas-specific restrictions, two—the procedural default rules and the certificate for appeal—can easily apply to sentence-administration cases when state judicial review is available, just as they do in other habeas cases. Two other AEDPA provisions, however, are so ill suited to these claims that they should not carry over to sentence-administration cases, even when state judicial review is available.

First, it is inappropriate to insist that sentence-administration claims adhere to a statute of limitations designed to limit delay in filing challenges to the conviction. The reasons that support a filing deadline are not relevant in these cases. Moreover, applying the statute of limitations in this context appears to be counterproductive: a recent study suggests that in cases raising sentence-administration claims, applying AEDPA’s statute of limitations provision increases litigation time and expense.

The successive-petition bar should also be abandoned for these claims. The same preclusion rules used for § 1983 claims would be a less troublesome option. Alternatively, courts might use the familiar pre-AEDPA standard for abuse of the writ, articulated in McCleskey v. Zant (1991) and applied to federal prisoners’ sentence-administration claims.

In addition to exempting these cases from the statute of limitations and successive-petition bar, we suggest one other departure from existing habeas rules. Sentence-administration claims, like other claims brought by prisoners challenging what happens to them in custody, suffer from three broad problems: prisoners have every incentive to file suit and little reason not to, the vast majority of claims are nonmeritorious, and inmates almost always lack counsel so it is difficult to find the meritorious needle in the nonmeritorious haystack. Thus, despite the fact that these sentence-administration claims implicate physical liberty, it makes sense to impose on them the same disincentives, screening devices, and procedural hurdles applied to other challenges to administrative actions by corrections officials. We suggest, therefore, that the PLRA filing fee and penalty scheme should also be applied to sentence-administration claims, even those reviewable in state court and brought under the proposed new habeas section.

Achieving this more rational system would require two relatively straightforward statutory amendments. A new statutory section should provide that sentence-administration claims are governed by §§ 2254 and 2253(c); that the filing fee requirements of PLRA apply; that the statute of limitations and successive-petition provisions do not apply; and that if the state has provided an opportunity for judicial review, the new provision is the exclusive statutory source of relief, but that if the claim is one for which the state provides no judicial review, the inmate may seek relief under either § 1983 or the new section. Second, an amendment to PLRA should authorize for this latter category of cases—challenges to sentence-administration decisions unreviewable in state court—the relief available under the habeas statute, that is, release from custody.

These changes would solve all of the problems we have identified. Creating a separate statutory provision for sentence-administration claims eliminates any guesswork about where to file each type of claim or which of the various provisions in AEDPA applies. Exempting these claims from the restrictions of §§ 2244(b) and (d) means that courts no longer have to fit square pegs into round holes. Adding filing fee requirements increases the efficient resolution of meritorious claims by reducing the number of frivolous claims. Finally, our proposal provides an incentive for states to authorize state judicial review of prison and parole decisions, which benefits prisoners, administrators, and state and federal courts. Without these statutory changes, the problems will only get worse.

Acknowledgments:

Copyright © 2009 Duke Law Journal.

Nancy J. King is Lee S. and Charles A. Speir Professor of Law, Vanderbilt University Law School.

Suzanna Sherry is Herman O. Loewenstein Professor of Law, Vanderbilt University Law School.

We thank Professors Lisa Bressman, Nita Farahany, Edward Rubin, and Kevin Stack for their helpful comments on earlier drafts, and Uta Oberdoerster (Vanderbilt J.D. 2008) for her excellent research assistance.

This Editorial is based on the following full-length Article: Nancy J. King & Suzanna Sherry, Habeas Corpus and State Sentencing Reform: A Story of Unintended Consequences, 58 DUKE L.J. 1 (2008).
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