STRUCTURAL CHANGE IN STATE POSTCONVICTION REVIEW.

• Author: Kovarsky, Lee

INTRODUCTION

Sandwiched between a state criminal trial and a federal habeas corpus proceeding is a lesser-known phase of criminal process called "state postconviction review" ("State PCR"). Whereas trials and federal habeas process have been lavished with centuries of legal attention, (1) State PCR is a younger phenomenon that has persisted in what one might call a state of malign neglect. There is no federal right to a state postconviction lawyer (2) because there is no federal right to state postconviction process at all. (3) Until recently, State PCR was a phase of criminal process that federal institutions (if not scholarship) (4) virtually ignored. Without federal intervention, it languished as an underfunded afterthought.

State PCR is a backwater no longer. The major structural changes lurking beneath the surface of American criminal punishment continue to undermine the premise that a meaningful "day in court" takes place in a single proceeding. Instead, a commitment to reliability increasingly entails effective collateral process, and the most potent doses of that process are available in state court. The growing need for postconviction review combines with restrictions on the federal habeas remedy to create hydraulic pressure on State PCR. Federal institutions have responded with "interventions" designed specifically to reinforce State PCR's burgeoning enforcement portfolio. My objectives in this Article are to model the effect of structural change on state postconviction remedies, to make sense of and evaluate the responsive federal intervention, and by extension to understand the role that State PCR will play in modern criminal process.

In Part I, I orient readers to the basic function and criticism of State PCR. For many years, State PCR was primarily a forum for relitigating constitutional challenges that were or could have been pressed in the "direct-review chain," by which I mean on appellate (rather than collateral) review of the conviction and sentence. (5) To the extent that collateral proceedings were necessary to vindicate constitutional rights, the federal habeas remedy did the heavy lifting. Federal courts were a robust backstop for dysfunctional State PCR process, which was vulnerable to criticism on two major grounds. First, states devoted inadequate resources to their State PCR. (6) Second, state collateral process could be hostile to Supreme Court decisions announcing new constitutional restrictions on criminal punishment. (7) Notwithstanding these serious problems, the robustness of the federal habeas remedy alleviated the need for federal institutions to intervene in State PCR. The constitutional rights of state inmates could be effectively enforced using a combination of direct appellate and federal habeas review.

In the last twenty years, however, the landscape has changed dramatically. In Part II, I provide a structural explanation for the growing institutional focus on State PCR: prominent constitutional defects may be discovered only after a conviction becomes final, (8) the Supreme Court increasingly announces new and retroactive decisions requiring a postconviction forum, (9) changes in forensic science might locate the most reliable evidence of innocence outside the trial record, (10) and adverse state postconviction outcomes have become virtually impossible to contest in federal habeas proceedings. (11) Because constitutional rules of newer vintage are less capable of being enforced effectively in the direct-review chain, a viable collateral forum is a growing imperative. At the same time, waves of federal habeas restrictions have all but eliminated federal courts from the collateral enforcement equation. The result is the emergence, by necessity, of State PCR as a crucial forum for enforcing federal law. In economic phrasing, demand for collateral process is rising at the same time that federal supply is falling.

Federal institutions have begun to use interventions to regulate State PCR, which is emerging as the only forum capable of enforcing a broad swath of constitutional law. In Part III, I provide a framework for understanding that intervention, which I subdivide into three forms. First, the Supreme Court has used "constitutional-law intervention" to constitutionalize small pockets of State PCR, thereby allowing itself to enforce those rules on appellate review of state postconviction dispositions. Second, federal institutions have increasingly attempted "habeas intervention" as a regulatory means of incentivizing the structural hygiene of State PCR--attention to the quality of representation and process in those proceedings. Third, federal institutions use "resource intervention" to siphon sources earmarked for federal habeas proceedings to state postconviction litigation.

In Part IV, I show that, as a descriptive matter, federal interventions primarily (but not always) conform to what one might call "Substantive-Constraint Exceptionalism"--an emphasis on substantive punishment restrictions, particularly Eighth Amendment proportionality rules. Substantive-Constraint Exceptionalism is the exclusive focus of constitutional-law intervention. The other forms of intervention are more likely to involve procedural constraints, but embody a phenomenon that I call "dispersed enforcement," whereby lower federal judges--rather than the Supreme Court--become the primary enforcement agents.

In Part V, I argue that, although such Substantive-Constraint Exceptionalism is the practiced reality of federal intervention, the Supreme Court's early attempts to justify it as something beyond an administrative necessity remain largely unpersuasive. Substantive constraints touch very few cases, and the per-case social cost of resolving such claims is law. Exceptionalism might be easy to administer, but it lacks an elegant conceptual justification. The Supreme Court's pro-Exceptionalism narrative appears in Montgomery v. Louisiana, (12) a 2016 case holding that the Federal Constitution requires states to apply federal retroactivity laws in their own postconviction proceedings. (13) Montgomery is a touch radical in this respect, and the Exceptionalist narrative it contains strongly suggests the difficult-to-defend proposition that a conviction and sentence remain "lawful" as long as the contaminating error is procedural.

My ultimate objectives are to diagnose, predict, and evaluate structural change in State PCR. Because claims and evidence necessary to enforce constitutional rights increasingly require a meaningful collateral forum, and because the federal collateral forum is so limited, State PCR is, for lack of a better term, the Last Man Standing. That status is not lost on the Supreme Court and lower federal judges, who are adapting available legal rules to try to improve the efficacy of collateral process in state court. And such adaptation does add to the bite of criminal-process rights, the underenforcement of which is perceived as a major blemish on American penal practice. What remains lacking, however, is a more satisfying theoretical explanation for the changes.

1. PROBLEMS IN STATE PCR

   Notwithstanding how prominently it now figures in the administration of criminal punishment, State PCR largely operates below the broader legal community's awareness threshold. Most discourse instead centers on federal postconviction process--i.e., habeas corpus proceedings. (14) Before convicted inmates file their federal habeas petitions, however, they must exhaust remedies in State PCR. (15) Almost every inmate interested in collaterally challenging a state conviction will encounter the state postconviction apparatus.

   State PCR is therefore a primary device by which the Federal Constitution is enforced. (16) Because of this function, federal institutions "intervene" in order to prevent underenforcement of specific constitutional guarantees. Left to develop on its own, however, State PCR fails to perform the enforcement function adequately, so searing criticism of State PCR is easy to find. (17) In Part I, I briefly familiarize readers with the historical function of State PCR and the chronic problems afflicting it.

   1. The Paradigm Use of State PCR

      At a criminal trial, a court adjudicates the guilt of a defendant, subject to various parameters imposed by law. Defendants can enforce those legal constraints at trial or on appellate review thereof--i.e., in the direct-review chain. As with any other type of judgment, legal regimes prefer that constitutional challenges to convictions and sentences be litigated in the direct-review chain rather than collaterally. After a defendant is convicted, however, collateral process does afford her a postconviction forum. Because of a federal exhaustion requirement, collateral litigation begins with State PCR and concludes with federal habeas corpus proceedings. (18) Figure 1 represents the sequence of criminal process visually.

      A collateral allegation that a conviction (or sentence) violates federal law is called a "claim." At least in the minds of the legal institutions making postconviction law during the infancy of State PCR, most collateral claims represented attempts to litigate issues that the inmate either waived or failed to win in the direct-review chain. (19) For that reason, many states have laws barring their courts from collaterally entertaining claims that were or could have been resolved at some prior phase of the criminal process. (20) Challenges requiring a collateral forum for competent litigation were more exception than rule. Federal institutions then developed legal principles conforming to the familiar scenario--for example, that the Constitution does not require State PCR at all, (21) that there is no constitutional or statutory right to counsel for any State PCR process, (22) and that extreme deference was due to all State PCR determinations. (23) These one-size-fits-all rules followed naturally from the view that the...