Rethinking The Federal Role in State Criminal Justice

Joseph L. Hoffman & Nancy J. King

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It is time for Congress to end its fifty-year experiment in post hoc federal court enforcement of constitutional criminal procedure. By clinging to ineffectual federal habeas review of state criminal cases, Congress is pouring tax dollars down the drain and overlooking a more effective way to enforce the Constitution: helping states provide competent representation in criminal cases.

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.


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).

  1. 466 U.S. 668 (1984).
  2. U.S. Const. art. I, § 9, cl. 2.
  3. 128 S. Ct. 2229 (2008).
  4. Id. at 2266 (quoting INS v. St. Cyr, 533 U.S. 289, 302 (2001)).
  5. Id. at 2273.
  6. Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. No. 104-132, 110 Stat. 1214 (codified as amended in scattered sections of U.S.C.).

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