A System for Courts to Redress Wrongs

The following letters to the editor were published on April 23, 2011 by the New York Times. They are in response to a proposal by Joseph L. Hoffmann and Nancy J. King to limit state prisoners' access to habeas corpus relief to death penalty cases or those in which a prisoner can prove innocence.

To the Editor:

Eliminating habeas corpus for most state prisoners, as Joseph L. Hoffmann and Nancy J. King urge in “Justice, Too Much and Too Expensive”, will destroy thousands of lives. Do the math of mass incarceration: If “only” .4 percent of habeas petitions are granted, with 1.4 million prisoners in state custody, that would yield a wrongful conviction number of 5,600 persons. The low success rate for habeas petitioners is due to legislative changes made in 1996 in a misguided effort to restrict habeas corpus. For a state prisoner to prevail in federal court now, the claimant must show that the state court reviewing the claim was not only wrong, but also violated “clearly established” federal law as determined by the Supreme Court. This is a virtually impossible standard to meet and argues for expanding, not limiting, federal review.

Condemning so many to unconstitutional imprisonment is an incalculable human loss. Those who argue that this price must be paid are not the ones who pay it.

RONALD L. KUBY
New York, April 17, 2011

The writer is a criminal defense lawyer.

To the Editor:

Joseph L. Hoffmann and Nancy J. King want to reform habeas corpus, and they do well explaining how that writ has been abused. But they propose allowing habeas corpus only for capital cases and when a prisoner can produce persuasive new evidence of innocence, an idea antithetical to our system of criminal jurisprudence.

To get habeas relief, it should be sufficient to show a denial of constitutional rights (like the right to competent counsel), or that the government abused the right to a fair trial (such as by withholding evidence).

The state systems of appeal are riddled with inconsistencies and injustice. Habeas corpus is often the only way to secure a remedy. Otherwise, constitutionally abused and innocent people languish in prisons for decades. Reform of habeas may be needed, but that reform should be more judicious than the professors suggest.

LAMAR W. HANKINS
San Marcos, Tex., April 17, 2011

The writer is a lawyer.

To the Editor:

Profs. Joseph L. Hoffmann and Nancy J. King may be premature in their call for a formal limitation on the scope of federal habeas corpus review of state convictions. My recent experience in North Carolina suggests that what appears on paper to have been an extensive review by state judges may not always withstand closer scrutiny.

In a noncapital case in which we believe the defendant is innocent, a state judge held a four-day evidentiary hearing, heard the brief oral argument of the parties and immediately ruled that the defendant had failed to prevail on any issue. He did not explain in any way why he reached that conclusion.

Instead, he asked the state to draft a “proposed” opinion, which he then issued nearly verbatim, including typos. There was no right to review of his decision, so the defendant filed a nearly 100-page petition for review, with more than 400 pages of exhibits. The state filed an opposition that was more than 100 pages.

The court of appeal denied the petition after five business days. Most lawyers would find that incredible. How likely is it that judges actually read the parties’ briefs and the underlying exhibits?

I doubt that most people would think the product of such a process should be insulated from federal habeas review.

JAMES E. COLEMAN Jr.
Durham, N.C., April 17, 2011

The writer is a professor of law at Duke University School of Law and co-director of the Duke Wrongful Convictions Clinic.

To the Editor:

The supposition of Profs. Joseph L. Hoffmann and Nancy J. King is that the criminal justice system is generally efficient and fair. My 13 years as a trial judge convince me it is neither.

Your newspaper has repeatedly reported the release of an innocent person from prison after serving years, often on death row, because of a wrongful conviction. These cases almost always involve capital crimes because the intrepid and overburdened lawyers working on these appeals concentrate their resources on behalf of those most imperiled.

This does not mean, however, that convictions for lesser offenses are free from error. And it is not just the actually innocent who need review of their convictions.

Slovenly and unconstitutional practices can convict the “right” person, but this should give no comfort to the rest of us. A system of unfair trials and scant review will necessarily assure that more of the guilty are convicted, but at the same time more of the actually innocent will be joining them behind bars.

STEPHEN J. FORTUNATO Jr.
Warren, R.I., April 18, 2011

The writer is a retired associate justice of the Rhode Island Superior Court.

To the Editor:

Profs. Joseph L. Hoffmann and Nancy J. King have more faith in state court judges than I have, especially in states in which judges are elected.

As Justice Sandra Day O’Connor said in her concurring opinion in Republican Party of Minnesota v. White (2002): “But if judges are subject to regular elections they are likely to feel that they have at least some personal stake in the outcome of every publicized case. Elected judges cannot help being aware that if the public is not satisfied with the outcome of a particular case, it could hurt their re-election prospects.”

Further limiting the possibility of meaningful habeas review in federal court will only worsen the effect of judicial elections, because judges often feel they must appear to be tough on crime to be re-elected.

BOB DAVIDOW
Ann Arbor, Mich., April 17, 2011

The writer is a retired professor of law at George Mason University.