A Reasoning-Process Review Model for Federal Habeas Corpus
Semeraro, Steven, Journal of Criminal Law and Criminology
For more than a century, judges and commentators have debated the standard of review applied in federal habeas corpus cases, i.e. collateral attacks on state criminal convictions in federal court. (1) Prior to 1996, the federal statute creating habeas jurisdiction did not specify a degree of scrutiny, and the standard applied by the courts varied over time in vaguely articulated ways untethered to the statutory language. (2) In 1996, Congress enacted the Antiterrorism and Effective Death Penalty Act, which, for the first time, explicitly included a standard of review. (3) It permits a federal habeas court to grant the writ only if a state court decision was "contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States." (4)
The Supreme Court has interpreted that standard to require a state court to reach what it calls an "objectively reasonable" decision. Conceptually, a federal habeas court may be required to deny the writ even if, had it been reviewing the case de novo, it would have ruled for the petitioner. As long as objectively reasonable jurists could debate the issue, the Court has said, a federal habeas court must allow the state's decision to stand. (5)
Many have argued that this new standard of review is too narrow. (6) Others have advocated even narrower habeas review. (7) Pointing to different historical periods, both sides of this debate contend that the writ must remain true to its original form. A critical examination of habeas's history, however, reveals that it has no true form. Instead, it has evolved as the role of federal constitutional law in state criminal justice systems has changed. (8) To justify a particular level of federal habeas review in the contemporary criminal justice system, one must do more than point to some period in which the preferred level of review existed. One must demonstrate instrumentally how particular levels of scrutiny of federal constitutional claims on federal habeas would serve particular goals in modern society. Neither the instrumental arguments that have been made for broad de novo review nor those for extremely narrow habeas review coherently support or explain the value of habeas in contemporary criminal justice systems. This article therefore concludes that the debate is unwinnable and should be abandoned in favor of a new model of federal habeas review.
Unfortunately, the current federal habeas standard is not an acceptable solution. The concept of objective-reasonableness, despite its name, is not objective at all. It turns on the court's subjective assessment of a concept that could not be vaguer: whether a decision reached by a state court, even if wrong to the mind of the federal judge, is nonetheless reasonable not simply in the sense that respected judges have reached it but in some additional objective sense. Such a standard provides no basis other than the subjective assessment of the federal habeas court to gauge the reasonableness of a state court's decision.
This incoherence is problematic in the obvious sense that it does not guide the lower federal courts and thus renders the law more unpredictable than it needs to be. Rejecting all attempts to adopt objective standards (9) or familiar review formulations, (10) the Court simply reiterates, as if repetition could produce clarity, that objectively reasonable results must be upheld.
Even worse than this uncertainty, the objective-reasonableness standard undermines both the principle of reasonable deference to state decisions embodied in the 1996 Act and Article VI's constitutional mandate that state courts are bound by federal law. (11) The 1996 Act required federal habeas courts to defer to reasonable applications of federal law, which given Article VI should be interpreted to mean well-reasoned opinions taking full account of the applicable law. (12) The Supreme Court's objective-reasonableness standard makes the quality of state court analysis irrelevant. …