Academic journal article Michigan Law Review

A Crisis in Federal Habeas Law

Academic journal article Michigan Law Review

A Crisis in Federal Habeas Law

Article excerpt

A CRISIS IN FEDERAL HABEAS LAW 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.


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 King4 and Joseph Hoffmann5 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. …

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