Habeas for the Twenty-First Century: Uses, Abuses, and the Future of the Great Writ.

• Author: Primus, Eve Brensike
• Position: Book review

HABEAS FOR THE TWENTY-FIRST CENTURY: USES, ABUSES, AND THE FUTURE OF THE GREAT WRIT. By Nancy J. King and Joseph L. Hoffmann. Chicago and London: The University of Chicago Press. 2011. Pp. xi, 255. $45.

INTRODUCTION

Everyone recognizes that federal habeas doctrine is a mess. (1) Despite repeated calls for reform, (2) federal judges continue to waste countless hours reviewing habeas petitions only to dismiss the vast majority of them on procedural grounds. (3) Broad change is necessary, but to be effective, such change must be animated by an overarching theory that explains when federal courts should exercise habeas jurisdiction. In Habeas for the Twenty-First Century: Uses, Abuses, and the Future of the Great Writ, Professors Nancy King (4) and Joseph Hoffmann (5) offer such a theory. Drawing on history, current practice, and empirical data, King and Hoffmann find unifying themes that not only explain our past use of the Great Writ but also give guidance regarding how we should interpret the writ going forward.

To their credit, the book is comprehensive in ways that most literature on habeas is not. To date, habeas scholarship has often been bifurcated: federal courts experts have written about executive detentions, (6) and criminal procedure scholars have written about federal review of criminal convictions. (7) By considering the role of habeas corpus in every context from executive detentions to reviews of state and federal criminal convictions to sentence administration claims, King and Hoffmann offer new and exciting insights about what drives the expansion and contraction of habeas corpus doctrine. They elegantly demonstrate how the federal courts historically have used habeas as a tool to restore the governmental balance of power on occasions when a significant societal change or crisis has placed that balance in serious jeopardy (p. viii). They emphasize the importance of ensuring that federal courts have the flexibility to deploy the writ when necessary to combat government overreaching (p. 12). Yet, at the same time, King and Hoffmann recognize that the writ must not be overused, lest it lose its respected status (p. 66). Balancing the need for flexibility against the need for prudence, they explain, is the only way to ensure effective habeas reform going forward (p. 86).

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

This is particularly true in the context of their approach to federal review of state criminal convictions. In that context, King and Hoffmann use history to argue that habeas's primary role is to intervene whenever a federalism crisis places the balance of power between the federal and state governments in jeopardy (p. 49). Such a federalism crisis exists, they say, only when a state rejects federal law because it is federal. (8) According to King and Hoffmann, the propriety of habeas review does not depend on how frequently or egregiously a state violates its citizens' constitutional criminal procedure rights. If the state does not act on the basis of an overt hostility to federal law, the federal courts should not use habeas to intervene. (9) Nonetheless, King and Hoffmann's own proposal for reform contains provisions that would allow state prisoners to file habeas claims, such as claims alleging actual innocence, even when there is no evidence that the states are hostile to these claims because of their federal nature. So if King and Hoffmann's proposals for reform are sound, their statement of the circumstances in which federal habeas review is appropriate is too restrictive.

In this Review, I argue that King and Hoffmann should expand their concept of what constitutes a crisis worthy of federal habeas intervention to include situations in which a state systematically violates criminal defendants' federal rights or systematically fails to provide defendants with adequate opportunities to vindicate those rights. (10) A state's entitlement to autonomy and respect is at its nadir when the state routinely flouts federal law, whereas the federal interest in using habeas review to catalyze structural reform in such a case is at its zenith. (11)

King and Hoffmann are reluctant to expand their definition of crisis to include these cases in part because they believe that restructuring federal habeas review to address these claims is not politically viable. (12) They believe that their own proposal, in contrast, will appeal to both sides of the political spectrum (p. ix). Specifically, they propose that Congress enact a statute limiting habeas review of noncapital state criminal convictions to cases involving retroactive applications of new law and claims of innocence predicated on newly discovered evidence (pp. 91-92). They then propose to use the resources saved by this streamlining to create a new federal initiative designed to help states improve their indigent defense representation systems (pp. 87-88, 91-92). At first blush, this idea has the appeal of a grand bargain, and King and Hoffmann make a helpfully provocative contribution to the habeas debate by putting this possibility forward. That said, the particulars of their proposed bargain are not realistic enough to make it viable. King and Hoffmann overestimate the cost savings that would accompany their alleged streamlining of federal habeas review, and they underestimate the expenditures required for their new federal initiative. As a result, their proposal is not as politically feasible as they suggest.

In Part I of this Review, I describe King and Hoffmann's approach to federal habeas review of state criminal convictions and explain both their interpretive theory of federal habeas review and their specific reform proposals. In Part II, I analyze the mismatch between their theory that federal habeas review should operate only during federalism crises and their proposals for reform. I also explain why I think that King and Hoffmann should resolve this tension by expanding their definition of crisis to include situations where states systematically violate criminal defendants' constitutional rights. In Part III, I contest the claim that King and Hoffmann's reform proposal is politically viable by showing that they have both underestimated the costs of their new federal initiative and overestimated the savings that would accompany their proposed streamlining of federal habeas review.

1. HABEAS FOR THE TWENTY-FIRST CENTURY

   In Habeas for the Twenty-First Century, Nancy King and Joseph Hoffmann tell a compelling and enlightening story about the recent history of the writ of habeas corpus. Federal habeas review, they explain, has always been about providing the federal judiciary with a flexible and powerful tool to use whenever a significant social or political crisis places the governmental balance of powers in serious jeopardy (pp. viii, 42, 68, 89). The writ must remain flexible, they claim, to ensure that courts can use habeas aggressively when necessary to address these periodic crises (p. 136). However, courts must also be prudent in their exercise of habeas jurisdiction so as to not devalue the Great Writ (p. 66). Habeas should therefore be used only as a last resort, when other alternatives for judicial review are unavailable, and even then only as a temporary avenue for judicial review of unlawful imprisonment claims (p. 168). Once the political or social crisis that prompted the need for habeas review passes or adequate alternatives for judicial review are created, habeas must recede (p. 91).

   Guided by these core principles of flexibility and prudence, King and Hoffmann make a number of proposals for reforming the current scope of the writ. In the context of executive detentions without trial, they explain that habeas review is "a vital structural protection for democracy and the rule of law" (p. 21). They suggest that federal courts should use habeas aggressively whenever the federal executive, acting alone or in combination with the legislature during a time of crisis, imprisons those it believes pose a threat (p. 24). In such situations, habeas serves to adjust the balance of power among the three branches of government by protecting individual liberties and curbing inappropriate governmental overreaching (p. 42). When the federal courts' use of the writ becomes too common, the federal legislature responds by developing alternative avenues for judicial review and, in turn, the role of the writ recedes (p. 24).

   In the context of federal review of state criminal convictions, King and Hoffmann detect a similar pattern, with the natural variation that the balance of power at stake in those cases is between the federal and state governments rather than between the branches of the federal government (p. 49). They explain that during crises of federalism, when hostile states disregard federally guaranteed rights, the federal courts should press habeas into service to release prisoners who would otherwise be left without adequate remedies (pp. 64-65). Once the federalism crisis passes, however, federal habeas review of state...