Restricting Access to Federal Habeas Corpus: Justice Sacrificed on the Altars of Expediency, Federalism and Deterrence


The access of state prisoners to federal habeas corpus has been under attack for decades, and the attack seems certain to continue in the future. The United States Supreme Court, for example, has imposed important limitations on federal habeas. Similarly, congressional proponents of additional limitations on the access of state prisoners to federal habeas corpus continue to press their cause.

In October 1987, President Reagan launched another attack, recommending the enactment of the Criminal Justice Reform Act of 1987 (CJRA) which includes a proposal to restrict the access of state prisoners to federal habeas corpus; this proposal is popularly known as the “Reform of Federal Intervention in State Proceedings Act of 1987” (RFISPA). The Supreme Court’s limitations and congressional proposals have been discussed in detail elsewhere. This Article addresses the RFISPA because it is the model upon which future efforts to restrict the access of state prisoners to federal habeas corpus will probably be based.

Section I of this Article examines the proposed legislation. Section II reviews the justifications for limiting the access of state prisoners to federal habeas corpus’ and challenges their validity. Proponents of restricted access claim that it will relieve the overburdened federal judiciary, recognize the importance of state courts in a federal system, reinvigorate the deterrent impact of state criminal justice systems, and encourage prisoner rehabilitation.

None of these proffered justifications survive careful scrutiny. The effect  of restricted access on the federal judiciary is likely to be minimal since habeas petitions by state prisoners comprise but a small percentage of the federal civil  docket, a percentage that has steadily declined since the 1970s. Similarly, the argument that restricted access significantly improves federal-state relations, while not completely invalid, is, nonetheless, of declining significance.  Finally, limiting access to federal habeas corpus will not improve the effectiveness of the state criminal justice systems and might very well detract from their effectiveness.

The final section of this Article assesses the impact that the proposed changes would have on the work of the federal courts, on the work of the state courts (especially on the state trial judge and defense counsel”) and on state prisoner and correctional agencies. It concludes that the proposed legislation would impose new burdens on the administration of criminal justice, on the rehabilitation of state prisoners and on state correctional agencies.

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