In Defense of Non-capital Habeas: A Response to Hoffman and King

John H. Blume, Cornell Law School
Sheri Lynn Johnson, Cornell Law School
Keir M. Weyble, Adjunct, Cornell Law School


The published version of this paper is available at:

For decades, federal habeas corpus review of state court judgments has generated wide-ranging, sometimes heated, debate among judges, policymakers and scholars. In their 2009 Essay, Rethinking the Federal Role in State Criminal Justice, Professors Hoffman and King added their voices to the exchange, contending that federal habeas corpus review of non-capital state court convictions and sentences should, with narrow exceptions, be abolished. They contend that the expenditure of money, time and effort necessary to provide review in such cases is no longer justifiable, and that those resources should be redirected to the creation of a federal initiative for improvement of trial level representation, in which states could participate on a voluntary basis. This Article begins with a systematic examination of Hoffman and King’s arguments for the abolition of non-capital habeas corpus review. It demonstrates that while state post-conviction review systems may have evolved since the 1960s, federal habeas corpus continues to play an important role in encouraging meaningful state court review, and in providing a safety net for deserving prisoners who have been failed by the state courts. It next explains that Hoffman and King’s proposal for abolition of non-capital habeas review, subject to narrow exceptions, would be unlikely to yield substantial net reductions in habeas litigation, both because many prisoners (correctly or incorrectly) would invoke the statutory exceptions, and many others would litigate the adequacy of state post-conviction review under the Suspension Clause. The Article then challenges the assumption that states would respond to the abolition of non-capital habeas review by voluntarily improving their own systems for delivering adequate representation at the trial level in the absence of an affirmative incentive to do so. Finally, it suggests an alternative set of reforms, beginning with a reduction in the nation’s world-leading incarceration rate and including modifications to three areas existing habeas law, which are better calibrated to improve the efficiency and effectiveness of habeas corpus review in non-capital cases.