Timothy P. O'Neill
Chicago Daily Law Bulletin
Copyright 2003 Law Bulletin Publishing Company
March 14, 2003
State Courts Need To Be Told When They're Wrong
What is the biggest change in federal criminal procedure in the last decade? It may be the sharply decreased role federal courts now have in monitoring state decisions through habeas corpus.
The story begins in the 1960s with the Warren Court's use of "selective incorporation" to make the criminal provisions of the Bill of Rights applicable to the individual states through the due process clause of the 14th Amendment. With the exception of the indictment clause of the Fifth Amendment, every right found in the Fourth, Fifth, Sixth and Eighth amendments also became limits on state criminal courts.
In a recent article, Professor Stephen F. Smith summed up what he considered the two key principles of the Warren Court's criminal jurisprudence. First, the court believed that federal constitutional rules should govern all key stages of the criminal process at both the state and federal levels. Second, it believed that federal courts should be the ultimate guardians of these federal constitutional rules. Smith, "The Rehnquist Court and Criminal Procedure," 73 U.Colo. L.Rev. 1337, 1344 (2002).
The first principle has largely survived the Burger-Rehnquist Court retrenchment. But the second principle has been greatly eroded over the last 15 years.
How did this erosion occur?
First, the Warren Court knew that the U.S. Supreme Court -- with its discretionary docket allowing it to review only a relative handful of state criminal decisions each year -- could have only a limited role in reining in wayward state courts. A state defendant trying to get the U.S. Supreme Court to take his case on direct review had two chances: slim and none.
Therefore, the real guardians of the federal rights of state criminal defendants would have to be the lower federal courts through their habeas corpus powers, under 28 U.S.C. sec2254. Once a state defendant has exhausted his state court appeals, he could still raise his federal issues in federal court. State defendants could use not only habeas corpus to obtain relief for themselves; they also could often get federal courts to expand existing federal criminal rights.
This system came to an abrupt halt when the Rehnquist Court decided Teague v. Lane, 489 U.S. 288 (1989). This case held that, subject to two narrow exceptions, a state criminal defendant could obtain federal habeas relief only if he could show that his claim was based on "old" established law.
And the Supreme Court gave "old law" a very narrow meaning.
If the Supreme Court found any gap between prior case law and the relief the defendant was seeking, it held that the defendant was asking for a "new rule" and was thus barred from habeas relief.
Congress essentially codified Teague with its revision of section 2254 in the Anti-Terrorism and Effective Death Penalty Act of 1996. Now a federal court may not grant habeas relief to a state defendant unless the state court's adjudication "resulted in an decision that was contrary to, or involved an unreasonable application of, clearly established federal law, as determined by the Supreme Court."
The U.S. Supreme Court itself has said that this revision imposes a "highly deferential standard for evaluating state court rulings." Lindh v. Murphy, 521 U.S. 320, 333 n.7 (1997), and "demands that state court decisions be given the benefit of the doubt." Woodford v. Visciotti, 123 S.Ct. 357, 360 (2002).
Moreover, the court has emphasized that the "contrary to" and "unreasonable application" clauses have distinct meanings. A decision is "contrary to" clearly established federal law if it fails to apply the correct controlling authority, or if it applies the controlling authority to a case involving facts materially indistinguishable from those in a controlling case, but nonetheless reaches a different result. Williams v. Taylor, 529 U.S. 362, 404, 413-14 (2000).
On the other hand, a state court decision involves an "unreasonable application" of federal law only if "the state court identifies the correct governing legal principle ... but unreasonably applies that principle to the facts of the prisoner's case." Williams, at 413. And what is crucial here is that "an unreasonable application of federal law is different from an incorrect application of federal law." Williams, at 410 (emphasis in original).
What this means, quite bluntly, is that federal habeas courts now have no interest in determining whether state criminal courts have reached correct results under federal constitutional law. It is fine for a state court decision to be flat-out wrong as long as it is not unreasonable.
In sum, federal courts are no longer the ultimate guardians of federal constitutional criminal law as applied in state courts. Their only function is to bring rogue state court decisions into line on those rare occasions when they have strayed beyond the incorrect into the unreasonable.
All of this is done under the aegis of "comity" toward state courts. But there is a down side for state courts: How do you get better at interpreting federal constitutional criminal law when there is no one to tell you when you are simply wrong?
This issue was recently raised in a very cogent opinion by Judge Guido Calabresi of the 2d U.S. Circuit Court of Appeals. Kruelski v Connecticut Superior Court, 316 F.3d 103 (2d Cir. 2003). He noted that when federal courts need clarification on a state law issue they can certify a question to that state's Supreme Court.
Yet there is no "reverse certification" from state courts to federal courts.
Therefore, Calabresi recommended that a federal court might often aid state courts by engaging in a two-step process to decide "unreasonable application" questions under the AEDPA. First, the federal habeas court should decide what the correct interpretation of U.S. Supreme Court precedent is.
Second, if the state's interpretation is incorrect, it should then go on to decide if the state's erroneous decision is nonetheless reasonable.
Calabresi concedes that in those cases in which the state's decision is ultimately found to be reasonable, the federal court's decision on correctness in the first step will not be binding. Yet this dictum is nonetheless useful, since it may be the only opportunity a federal court will have to review a state court practice.
The only other route is direct review by the U.S. Supreme Court, and in the 2001 term, the court heard arguments in only 88 of the 7,924 cases seeking review.
The 9th Circuit has gone beyond Calabresi's suggestion. It uses the two-step procedure in every state habeas case. Clark v Murphy, 317 F.3d 1038, 1044 n.3 (9th Cir. 2003).
Or at least it did until March 5. On that date the U.S. Supreme Court announced that it disagreed with the 9th Circuit's two-step approach. Therefore, in its review of a habeas case, the Supreme Court skipped the correctness inquiry and went right to its conclusion that the state's decision was simply reasonable. Lockyer v Andrade, No. 01-1127 (March 5).
Here's hoping the 9th Circuit -- and other circuits -- flout Lockyer and continue to give guidance to state courts through the two-tier review. Even if a decision is reasonable, a state court should nevertheless be told when it is wrong. |
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