• 18 March 2009

Habeas Corpus and State Sentencing Reform: A Story of Unintended Consequences

Nancy J. King & Suzanna Sherry

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This Article tells the story of how shifts in state sentencing policy collided with shifts in federal habeas policy to produce a tangled and costly doctrinal wreck. It also proposes a simple solution to the problem.

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.

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.

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.

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:

 Microsoft Word - Document2

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.dingbat



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).
Click Here for the Full Version

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