The high cost of snipe hunts

Emily Bazelon is a senior editor at Slate, a contributing writer at the New York Times Magazine, and the Truman Capote Fellow for Creative Writing and Law at Yale Law School. She graduated from Yale law school and served as a law clerk on the U.S. Court of Appeals for the 1st Circuit.  Smart and talented are insufficient words to describe Ms. Bazelon.

Yesterday, Ms. Bazelon wrote a piece for Slate entitled,  An Innocent Extension, The Supreme Court moves to protect the innocent, and Justice Scalia fumes (May 28, 2013, at 3:58 PM).  In it, she goes after Justice Scalia for his scathing dissent in McQuiggin v. Perkins.  In that case (which did not involve the death penalty), a closely divided Court concluded that a proper showing of “actual innocence” is sufficient to circumvent the Anti-Terrorism and Effective Death Penalty Act’s (AEDPA) statute of limitations even if the prisoner made no effort to be diligent.  (Opinion here.)

Excluding death penalty cases, Ms. Bazelon wrote that only .45% of the some 16,000 federal habeas cases filed annually resulted in granting relief to the prisoner.  Then, Ms. Bazelon added in reference to the command of Perkins for additional review:  “Yes, reading habeas petitions takes some time, and reading more of them takes more time.  But that’s just part of the job of the courts.”

I take no position McQuiggin v. Perkins or most of what Ms. Bazelon writes about that case.  Nor do I express any opinion whatever on AEDPA or legislative efforts to change it.  But, as someone who has handled hundreds of habeas corpus cases (including more than my share of death penalty cases) in this court as well as in New York and Arkansas, I respectfully suggest Ms. Bazelon missed a policy question that is worthy of serious reflection.

Enormous federal resources are spent dealing with habeas corpus cases.   See, for example, my earlier post on pro se law clerks and the pro se docket.  The costs to the states are large as well.  As a matter of policy, if less than one-half of one percent of those non-death penalty cases warrant relief, should we hail Supreme Court decisions that have the practical impact of compelling us to spend even more money hunting for snipes?


19 responses

  1. If the consequences of not spending more money snipe hunting is that the actually innocent remain incarcerated, then yes, we should spend more money. Or rather, we won’t be spending the money hunting snipes; we’ll be spending it hunting innocent prisoners and setting them free, and, incidentally, thereby reducing unnecessary expenditures on incarceration. I am not familiar with what comprises the costs of each habeas review, though I suspect the answer is simply that the prosecutor’s office must respond to the brief, and the court must review the submissions. One would think that these costs could be reduced without impairing the ability of the actually innocent to obtain justice. Perhaps the procedure could be modified so that with a late filed petition, a clerk or magistrate reads the petition prior to requiring the prosecutor to respond, to determine whether there is any merit that requires additional expense to address. Preventing the nightmare of incarcerating an innocent person demands more than just hand wringing at the cost; it should instead prompt an attempt to deal with those costs creatively, while still leaving the door open to free the innocent.

  2. My thoughts are similar to Matthew’s. When we are talking about freeing the innocent, shouldn’t the value to society associated with doing that be high? First, there is the moral imperetive that innocent should not be imprisoned. Second, there is the value that the public’s faith in our criminal justice system is higher if the public does not believe that the innocent are in jail.

    Contrast this with the cost associated with opposing a habeas petition. You write they are high but what are they? Aren’t we just talking about some salaries and benefits for the government employees that oppose the petitions or review them? Are there crimes that are not being prosecuted because too many prosecutors are writing briefs opposing habeas petitions? Are there motions that judges are refusing to hear because their staffs are too busy with habeas petitions? Are those costs more than the value of the innocent being freed?

    If the costs to the state are so high, one would think that the best way for the state to keep those costs low would be to ensure that defendants are actually getting an effective defense at the initial trial. I can’t comment on Nebraska, but I think it is generally well known that many states pay public defenders (or private attorneys who contract with the state government to provide criminal defense to the indigent) are woefully overworked and/or underpaid and that the quality legal representation often suffers as a result.

    I suspect that the value of the innocent being freed outweights the cost to the state by a large margin. I empathize with the folks who have to read unmeritorious submissions as that can’t be much fun. But who says work is supposed to be fun? It’s better they do that then that the innocent remain in prison.

  3. Dear Judge,
    That is true. I may be wrong but it feels like perfection is what we should be aiming for when we talk about the denial of someone’s liberty. I suppose that is easy for me to say when I am not the one doing the work.

    In any event, your blog is flippin’ fantastic and I feel a little bad that my first comment might be viewed as criticism.

  4. Thanks Judge. Like Adam, I am also very glad to have found your blog. And I agree, it is pricey (actually, impossible) to buy perfection. And yet, it is still a worthwhile goal. I don’t pretend to have the answers to the cost issue. But we should at least not assume that the problem is insurmountable.

  5. Adam,

    Oh, no, please be critical. Trust me, I won’t be offended in any way. I truly appreciate your engagement.

    All the best.


  6. I tend to side with Adam and Matthew on this one. The cost to review the thousands of habeas petitions certainly is high, and the hours demanded of court staff (not just judges) to sort through those petitions is great. I certainly agree that better-trained defense counsel and trials with more equal resources (probably an impossibility) could help stave off the costs of reviewing these cases; then again, the guilty will still be guilty and will still appeal their convictions through every avenue they have (as they are entitled to do) regardless of how “good” counsel performed and how “equal” the parties’ resources.

    As needle-in-a-haystack as the innocent petitioners or meritorious requests for habeas are, that even one person is wrongly convicted and has to fend for him- or herself from a jail cell to prove to a judge that he or she is innocent is a travesty, shadowed only by the laws which say that that person has not been deprived of any protected right (assuming the trial was procedurally unflawed) and has no recourse, beyond perhaps a pardon.

    OK, rant done. Keep up the good blog, judge.

  7. Ryan, thanks for your “rant.” My impulse is the same as yours. I intended to highlight only the point that judicial resources are finite and that with every incremental increase in use funds are diverted from another use. Thus, we have to be smart about which services to expand, which services to curtail, and which services to keep the same.

    All the best.


  8. When a person is wrongly convicted it is not just a moral but an economic loss. For example, if a person with a 30 year sentence gets that reduced to 15 years (by tossing some counts or re-negotiation or whatever) then the savings to my state is about $600,000 at the average cost of incarceration. The judiciary, like many institutions, tends to see only costs/benefits to *itself*. Similarly, our magistrates will gladly jail someone at a cost of $500 to collect a $100 fee that has not been collected. The reason — the judiciary gets the fee, the county pays the cost of jailing.


  9. Dear Anonymous,

    You make an important point–there is a real economic cost to incapacitating innocent people. Thanks for your thoughts.

    All the best.


  10. Judge, Perkins did not start the “snipe hunt” of which you complain. We started into the woods with Schulp v. Delo and House v. Bell, both of which were welcome precedents to open the door for relief to the truly innocent. Perkins is such a minor tweak to the prior rules that Justice Scalia’s “bluster” seems completely out of proportion to the result.

    Granted, procedural hurdles provide a convenient tool to help cleanse a docket filled the idle ramblings of the great mass of unquestionably guilty prisoners who have nothing better to do than huddle with a jailhouse lawyer to scribble out a grandiose sounding petition. A few prisoners, and it’s unfortunately more than we like to admit, have legitimate claims in the innocence department. I’ve represented one for over twenty years. He’s been sitting on death row a lot longer than that, and I daily deal with the defaults that arose during the tenure of my predecessor counsels. When we do bring claims that seem to be newly discovered, the State will argue about how we should have discovered it earlier and therefore it’s time barred. This happened several years ago, when a state court judge decided that the defendant should have somehow spent time, post-conviction (while incarcerated on death row), tracking down a witness who could not be located prior to trial but who apparently could have been found (in the judge’s opinion) on a date well before the date on which he actually came forward (on his own) to post-conviction counsel.

    The wasted judicial resources argument, based on my experience, has little to commend. Back in the eighties, I spent three years at the elbow of your Article III brethern who (still) sits in Florida. During my tenure, three full blown death row inmate petitions required full review and decision. (Several more hit us on “watch” status — waiting to see if the state courts woulkd stay an execution date.) Not a one of the three raised an innocence issue. Nonetheless, I don’t think 10 minutes more or less would have been spent on the petitions if innocence was an issue, because the exhaustive review extended to death cases does not pull up short merely because there’s no question that the petitioner committed the crime. Now, this was all pre-AEDPA, when federal courts could not turn their backs on a petition by saying that the state courts were wrong, but not wrong enough to warrant relief for the petitioner under AEDPA’s standard. Perhaps things have gotten easier since then, but I doubt it. I’ve litigated from counsel’s table in the post-AEDPA period, in death and non-death cases, and any counsel worth his salt can present a compelling case that will send you as a judge back to the record for a careful read.

    Perkins seems to convey the judicial discomfort with the fact that there is no claim of ineffective assistance by post-conviction counsel. AEDPA sets a relatively short statute of limitations (one year) for bringing a claim based on newly discovered evidence. Counsel and prisoners themselves can easily trip over that SOL, which has generated more than its fair share of litigation. A prisoner cannot usually blame counsel’s incompetence to obtain a pass. When Justice Ginsburg states that, “[u]nexplained delay in presenting new evidence bears on the determination whether the petitioner has made the requisite showing” to invoke the new “miscarriage of justice” exception to the AEDPA SOL, she recognizes that the truly innocent do not seek delay (I can confirm that from my own experience) and they can explain why they missed the deadline. In other words, before the hunt commences, a petitioner must sound the horn loud enough and on a true note. That should flush out the snipe.

  11. Dear JHP,

    Thanks for your comment. With your in-depth experience, I found your comment very persuasive.

    To be clear, and as I said in my post, I did not intend to express an opinion about Perkins or the substantive merits of the opinion. Rather, I intended to highlight the importance of recognizing that the judiciary has finite resources. Right now we employ and are struggling desperately to keep around 140 pro se staff attorneys nationwide. We currently weight their work at about 8.3 hours per habeas case on average. Particularly given the devastating impact of the sequester on the judiciary, every little bit of extra work counts.

    All the best.


  12. Isn’t the real problem here that we have a habeas system that generally focuses not on the substantive question of whether someone is innocent but on procedure? We know with increasing certainty that there are times trials (and even guilty pleas) get it wrong, and yet we continue with a system where post-trial options can only undo wrongs through procedural errors.

    Of course some degree of procedure is necessary, and serious procedural violations may merit a re-do. But it seems to me that the elevation of procedure above substance is the main cause for the multiple thousands of habeas petitions (most of which don’t even purport to make a strong claim of actual innocence) and the main cause for legislation like the AEDPA trying to crack down. Then because miscarriages of justice are so disturbing, exceptions are needed.

    If we were more honest and created a system that focuses on evaluating actual innocence (without a million procedural hurdles to doing so and exceptions thereto), we’d be better spending our time and money and also getting at the root of the problem that everyone wants to solve (to varying degrees).

  13. Dear David,

    Many years ago a very smart judge said much the same thing. See Donald P. Lay, The Writ of Habeas Corpus: A Complex Procedure for a Simple Process, 77 Minn. L. Rev 1015 (1993).

    All the best.


  14. Snipes aren’t just rare; they don’t exist. Habeas review is not a snipe hunt. (More like looking for a 4-leaf clover!)

  15. Pingback: More about snipes « Hercules and the umpire.

  16. thusbloggedanderson,

    Please see my most recent post for a response. By the way, I love your blog.

    All the best.


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