More about snipes

Photo credit:  Laem Pak Bia, Petchaburi, Thailand per Wikimedia Commons license.

Photo credit: Laem Pak Bia, Petchaburi, Thailand per Wikimedia Commons license.

thusbloggedanderson commented in response to my earlier post that:  “Snipes aren’t just rare; they don’t exist. Habeas review is not a snipe hunt. (More like looking for a 4-leaf clover!)”

While I may agree with the sentiment, snipes do exist.   Pictured above is a Pin-tailed Snipe (that I presume claims to be actually innocent).  For more on the wily Pin-tailed Snipe, see the ABA Blog (American Birding Association).


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?


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