Federal courts supervise state criminal justice administration through decisions under two federal statutes, the Habeas Corpus Act and section 1983, a Civil Rights Act provision. These statutes provide overlapping review of constitutional errors. Habeas law has become too technical, limited by procedural barriers that often result in prisoners' losing their constitutional claims; moreover, the overlap between the two statutes adds further confusion. The theoretical basis for this complicated system of duplicative litigation no longer exists. Because the most important law of criminal procedure is now completely federal, state courts have no institutional reason to resist its application in favor of their own. Habeas law should be reformed and simplified to protect the goals of criminal procedure: innocence and deterrence of unreasonable state-court constitutional interpretations. Section 1983 litigation revisiting issues that the plaintiff had a meaningful opportunity to raise in state court or on habeas should be curtailed, unless the plaintiff demonstrates that one of those courts has ruled in his favor.
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References
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“Of the roughly 1.5 million felony cases prosecuted in this country each year, less than 3% are brought in the federal system. Of the more than 13 million prosecutions for minor offenses, less than 1% are brought in the federal system.”Yale Kamisar, Wayne LaFave, and Jerold H. Israel, Modern Criminal Procedure, 8th ed. (St. Paul, MN: West, 1994), p. 2.
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2. Our proposed reform of federal habeas law is elaborated in greater detail in a recent Supreme Court Review article coauthored by one of the authors of this article. See Joseph L. Hoffmann and William J. Stuntz, “Habeas after the Revolution,”Supreme Court Review, 1993:65 (1994).
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3. 372 U.S. 335 (1963). In Gideon, the Court held that defendants in all major state criminal prosecutions were entitled, under the Sixth Amendment, to the assistance of court-appointed defense counsel if they could not afford to hire their own lawyer.
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4. 367 U.S. 643 (1961). In Mapp, the Court extended the exclusionary rule to state criminal cases, requiring the exclusion from trial of evidence seized in violation of the Fourth Amendment.
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5. 384 U.S. 436 (1966). In Miranda, the Court mandated the now-familiar set of warnings, designed to protect the Fifth Amendment's privilege against self-incrimination, that must be given before the police may engage in the custodial interrogation of a suspect.
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6. The habeas statute also permits petitions based on violations of federal treaties or laws, but the Supreme Court has indicated that non-constitutional habeas claims are subject to a different, more restrictive standard of review. See Reed v. Farley, 114 S. Ct. 2291 (1994). Therefore, as a practical matter, habeas review is largely limited to federal constitutional claims.
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7. 433 U.S. 72 (1977).
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8. Stone v. Powell, 428 U.S. 465 (1976).
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9. 489 U.S. 288 (1989).
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10. See Younger v. Harris, 401 U.S. 37 (1971). The Younger abstention has never been a categorical bar; the civil-rights-era cases provide sufficient reason to maintain the federal courts' ability to intervene to stop the destruction of federal rights.
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11. 114 S. Ct. 2364 (1994).
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12. See Chapman v. California, 386 U.S. 18 (1967) (standard for harmless error in general); Brecht v. Abrahamson, 113 S. Ct. 1710 (1993) (standard for harmless error on habeas review).
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13. In the ordinary case, such damages are likely to be quite small. For instance, the compensatory damages that result from an illegal search, if unaccompanied by physical harm to the plaintiff, will likely be minuscule, although the possibility for punitive damages remains.
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14. Under present law, the binding effect of the state court's decision on the federal court would depend on whether the state court would recognize such a binding effect in its own subsequent proceedings. See Allen v. McCurry, 449 U.S. 90 (1980).
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15. See U.S., Department of Justice, Office of Justice Programs, Bureau of Justice Statistics, Sourcebook of Criminal Justice Statistics (Washington, DC: Government Printing Office, 1990), tab. 5.55.
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The same authors, however, noted else-where that § 1983 filings were steadily increasing, perhaps because of the Supreme Court's restrictions of habeas during the late 1970s and early 1980s. Theodore Eisenberg and Stewart J. Schwab, “The Reality of Constitutional Tort Litigation,” ibid., 72:641, 664 (1987).
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17. Heck v. Humphrey, 114 S. Ct. 2364 (1994).
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18. It is now true, of course, that many state institutions are substantially governed by federal law. State welfare officials, for instance, often are administering joint federal-state programs, such as Aid to Families with Dependent Children, and are required, as a result of the federal legislation providing funds, to comply with a variety of federal rules. See, for example, Maine v. Thiboutot, 448 U.S. 1 (1980) (allowing a § 1983 suit to enforce the provisions of the Social Security Act).
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19. Many of the most expansive readings of § 1983 occurred during the 1960s and 1970s as well, as the Court recognized the potential hostility of state courts to the claims of African Americans during the civil rights movement. See, for example, Dombrowski v. Pfister, 380 U.S. 478 (1965) (expansively reading injunctive power in § 1983 action brought by a civil rights organization to restrain harassing prosecutions in Louisiana).
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20. The main exception is in those few areas, and in those few states, where state constitutional criminal procedure law provides greater protection to criminal defendants than the corresponding federal law. But such instances also do not lead to a conflict between state law and federal law; there can be no trumping by the federal law if the state law is more protective.
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21. The § 1983 damages could be obtained in either state court or federal court; unlike in criminal cases, state and federal courts have concurrent jurisdiction over federal civil claims like the one created by § 1983.
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22. Habeas litigation does not provide for such compensation; the only relief available in a habeas court is release from state custody, or from the terms of a particular sentence, such as a death penalty.
