The Misadventures of State Postconviction Remedies


Forty years ago, when Fred Vinson presided in Washington and Edward Levi was an obscure academic at the University of Chicago, the Supreme Court decided Young v. Ragen, one of those recurrent little cases packing an enormous practical and theoretical wallop. Habeas corpus aficionados and Dean Levi, who served as counsel for the petitioner, will recall that Jack Young was convicted of burglary and larceny by an Illinois circuit court and was sentenced to a term in prison. A year later, he filed a habeas corpus petition in state court, alleging among other things that the guilty plea entered against him in the trial court had been involuntary and thus invalid under the fourteenth amendment. The state’s attorney conceded that Young’s allegations were substantial and that he was entitled to a hearing.4 Yet the circuit court dismissed summarily, ostensibly on the ground that habeas corpus was not available in Illinois to test the validity of a criminal conviction on constitutional grounds. Nor could Young raise his claim on writ of error or coram nobis. To make matters worse, the Illinois appellate courts had no appellate jurisdiction to review denials of habeas relief. In the end, it appeared that there was no mechanism at all within the state court system by which Young, or prisoners like him, could raise what might be meritorious federal contentions.

The occasion was momentous. Notwithstanding the Court’s rejection of Justice Black’s “incorporation” theory several years earlier, most of the Justices then sitting were poised to effect improvements in state criminal processes by forcing the states to conform to federal constitutional standards. Already the Court had agreed to examine the “totality of facts” in each instance to ensure that state procedures were “fundamentally fair.”‘” A few years later, the Warren Court would demand that “fundamental” procedural safeguards recognized in the Bill of Rights be respected in state as well as federal prosecutions. Simultaneously, the Court was grooming the lower federal courts to assume the primary burden for the enforcement of constitutional rights in federal court. Well before the decision in Young, the Court had established that district courts would issue the federal writ of habeas corpus on behalf of state prisoners whose convictions were obtained in violation of federal law. Five years after Young, in Brown v. Allen, the Court would underscore the availability of the federal habeas courts to guarantee compliance with federal standards.”

By common account, both the Court’s innovations in substantive constitutional law and its development of federal habeas corpus to provide federal enforcement machinery reflected dismay over the arbitrary, even brutal, handling of criminal defendants by state authorities. At the same time, however, the Court was trying desperately to obtain the cooperation of the state courts in the new federal order. A year earlier, the Court had read the supremacy clause to require state court enforcement of a valid federal statute despite its penal character. And, in a series of criminal cases from Illinois culminating in Young, the Court had become increasingly distressed by state procedural complexities that seemed invariably to thwart the consideration of constitutional claims in state court. In case after case, prisoners attempted to follow the procedural advice provided by the Illinois Supreme Court’s most recent rulings. But, in case after case, that court concluded that the wrong writ had been chosen. In each instance, the United States Supreme Court found such state procedural grounds of decision to be sufficient. Yet patience with common law formalisms was wearing thin. The Justices had recently warned that the state courts’ refusal to address federal constitutional claims might itself constitute a due process violation.

In Young, accordingly, Chief Justice Vinson faced a vital choice. On the one hand, it was perfectly open to him to wash his hands of the state courts and their vexing processes and to reach and resolve Young’s federal claim. That would have been wholly consistent with the Court’s growing willingness to measure state criminal process against federal constitutional standards. If the claim could not be determined without an evidentiary hearing, Vinson might have dismissed for that reason, without prejudice to a federal habeas corpus action in which a federal district court would take evidence, find the relevant facts, and dispose of the claim on the merits. Moreover, channeling constitutional litigation to the federal habeas courts would have accorded with the Justices’ increasing recognition that the Supreme Court itself could not always correct errors in state criminal cases and that the lower federal courts, exercising their jurisdiction in habeas, could serve as surrogates. Clearly, the “adequate state ground” doctrine posed no bar this time around. Illinois was free to choose the state procedural vehicle it wished prisoners to employ. If the circuit court had dismissed Young’s action because he had pursued habeas corpus, as opposed to some other “clearly defined method” for pressing his federal claim, Vinson would have affirmed on that nonfederal basis. In this instance, however, Illinois offered “no post-trial remedy” at all to prisoners in Young’s position. That state of affairs could provide no “adequate” state procedural ground of decision on which the circuit court’s judgment could rest.

On the other hand, it was open to Vinson once more to exhort state authorities in Illinois to make the state courts available, by some means, for the treatment of Young’s federal claim. That is the course the Chief Justice chose to follow. He vacated the circuit court order below and remanded for reconsideration. No one dissented. There was reason to hope that something good might happen on remand. At the time, the Illinois Supreme Court had begun to widen the scope of state habeas corpus.’ Even though some circuit courts had continued to dismiss postconviction petitions, it was at least possible that those trial-level courts had not been apprised of the state supreme court’s change of heart. Vinson’s disposition was, then, entirely understandable and in keeping with the Supreme Court’s practice of avoiding confrontations with the state courts whenever possible. Indeed, the decision in Young was admirably sensitive, measured and pragmatic. I mean in this essay to show that it was also dead wrong.

Two mistakes were made in Young. First, on a practical level, the Court signaled Illinois and other states to establish general state postconviction remedies for the litigation of federal claims raised after the completion of the ordinary appellate process. In Part I, I trace the development of state postconviction remedies since Young and examine the role they have come to play at present. That history has not been happy. Notwithstanding the best of intentions on the part of proponents, and despite the possibilities that surely existed, the states have established and now employ postconviction remedies that all too often frustrate the adjudication of federal claims. Accordingly, I contend that petitioners should be relieved of any responsibility to pursue those remedies before seeking federal habeas relief.

Second, on a conceptual level, the Court in Young lent credence to what is conventionally called the “process model” in American jurisprudence. At its core, the process model contemplates that the substantive conclusions of governmental institutions should be accepted on the whole, unless the process by which those outcomes were generated is found to be flawed in a mannerthat undercuts their political legitimacy or accuracy. In Part II, I elaborate on the process model more fully and explore its implications in this context. The appraisal is not sympathetic. As applied to the allocation of responsibility and authority between the federal and state courts, the process model fails to appreciate the value of ensuring that litigants with federal claims have at least one fair opportunity to litigate those claims in a federal forum. Accordingly, I contend on this more fundamental ground that state postconviction remedies should be optional.

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