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Ken Turchi
IU Maurer School of Law

Last modified: Monday, April 18, 2011

Habeas corpus must be preserved for crises, not wasted on routine cases, says IU legal expert in new book

April 18, 2011

BLOOMINGTON, Ind. -- In a groundbreaking new book, Habeas for the 21st Century: Uses, Abuses, and the Future of the Great Writ (University of Chicago Press), Indiana University Maurer School of Law Professor Joseph L. Hoffmann and co-author Nancy J. King of Vanderbilt University Law School argue that habeas corpus in the United States is being seriously misused and needs to be reformed. Their arguments are summarized in an op-ed in the April 17 New York Times titled "Justice, Too Much and Too Expensive."

"The main problem today is that the 'Great Writ' of habeas corpus -- one of our most important and cherished protections against abuse of government power -- is being used primarily for the day-to-day review of routine state criminal cases," said Hoffmann. "This is a tremendous waste of scarce resources, and even worse, it undermines public respect for habeas and thereby threatens its future."

Throughout its long history, habeas has been used by courageous judges to rein in the powers of the president, Congress, or the states, whenever those powers become abused during periods of social or political crisis. "We can easily see the real value of habeas in the current 'War on Terror,'" Hoffmann noted. "The president, with the help of Congress, tried to block those who might be wrongly imprisoned at Guantanamo from gaining access to a civilian court. Habeas gave judges the power to fight back -- and, in the process, to help men like Lakhdar Boumediene, who was held at Guantanamo for more than seven years even though he was completely innocent."

But for every case like Boumediene, there are thousands of worthless habeas petitions filed by state convicts. These petitions -- more than 17,000 per year -- almost never succeed; according to a new study conducted by King and detailed in the book, more than 99.6 percent of them are denied. But the flood of petitions forces judges and state prosecutors to waste time and energy on repetitive review of baseless allegations already addressed and rejected by the state courts.

Joseph Hoffmann

The authors propose several habeas reform measures in the book, including that Congress cut off access to habeas for convicted state prisoners except for two special categories: those sentenced to death, and those with strong new evidence that they are innocent of the crimes for which they were convicted. "Capital cases and innocence cases are special because they are extremely rare, and also because the consequences of a mistake are so extreme," Hoffmann explained. "That makes it worthwhile for habeas courts to have an extra chance to review those cases. For all other criminal cases, however, it's time to recognize that habeas review is no longer needed. In fact, it would hardly be missed."

"Habeas must always remain flexible enough to respond to a new and unanticipated crisis," Hoffmann said. "But at the same time, habeas must be exercised with prudence, so that it can be preserved for the times and places when it is truly needed. That's how we can best protect the future of the 'Great Writ.'"

Hoffmann, the Harry Pratter Professor of Law at the IU Maurer School of Law, is available to comment on the book, habeas corpus, innocence cases, and the death penalty. He can be reached at 812-345-1520 or at .