Facts About Donald Trump And His Administration

Some of the major themes of Trump 2.0's agenda are quite simply contrary to the law and Trump is just such as bad President and bad person.

* Opposition to the Israeli government's treatment of Palestinians is not antisemitic.

* The U.S. Supreme Court has specifically held for decades that antisemitic speech is protected the First Amendment. National Socialist Party of America v. Village of Skokie, 432 U.S. 43 (1977).

* Equity and inclusion have been legally required in employment, at least since the Civil Rights Act of 1964, and in public education since Brown v. Board of Education of Topeka, 347 U.S. 483 (1954).

* Diversity achieved by breaking down barriers to employment and education for women, people of diverse sexual orientation, minorities, and people with disabilities is legal, and arguably mandated by U.S. Civil Rights laws.

* Diversity achieved by favorable treatment of women, people of diverse sexual orientation, minorities, and people with disabilities, relative to a meritocratic standard is legal to overcome past discrimination.

* No U.S. law is a valid basis for removing books and websites that laud the achievements of historical women, people of diverse sexual orientation, minorities, and people with disabilities, or depict these individuals in fiction. Indeed, multiple court cases applying existing U.S. law have held that this kind of censorship in public libraries is illegal, such as a recent case involving the Elizabeth school district in Colorado.

* None of the Trump 2.0's political appointments have been remotely meritocratic, contrary to his claim that he wants to end affirmative action.

* There is no legal basis for the U.S. federal government to prohibit educational institutions, public or private, at any legal, from teaching critical race theory.

* Discrimination against white, straight men in employment and education is modest at best, and mostly, non-existent.

* Discrimination against Christians in the U.S. is basically non-existent, and, instead, for the most part, the U.S. sees significant discrimination against non-Christians.

* Christian religious freedom is not a valid basis for discrimination against homosexuals and transgender people by organizations that are not religious organizations.

* All levels of government in the United States are strictly forbidden from supporting any particular religion, or religion at all, by the establishment clause of the First Amendment to the U.S. Constitution.

* It has been illegal since the Impoundment Control Act of 1974 for the President to refuse to spend Congressionally appropriated funds.

* Generally applicable rules and regulations of the Executive Branch of government in the United States can only be adopted after notice and hearing according to the procedures of the Administrative Procedure Act.

* Speech, legislative lobbying, and legal action against President Trump are protected by the First Amendment and it is illegal for President Trump to retaliate against law firms and individual for doing so.

* Federal employees who are not political employees or lawyers cannot legally be fired by the President without good cause.

* The President has no constitutional authority over employees of Congress or the judicial branch or employees of non-profit corporations formed by the U.S. government, and has only the authority granted to him by federal statutes to do so.

* The President has absolutely no legal authority to defy a court order, even if the legal basis for issuing that order was incorrect and it is later overturned on appeal. Despite this, President Trump has intentionally defied court orders more than once in his first four months in office.

* The U.S. Constitution requires the directors of federal agencies to be nominated by the President and approved by the U.S. Senate, or, when a Congressionally approved law provides otherwise, by a federal judge or a U.S. Senate approved officer of the United States.

* It is illegal for the President to use his office to promote a private business in his official capacity.

* The U.S. Constitution expressly prohibits federal employees, including the President, from receiving gifts or other private benefits from holding a public office without Congressional approval on a case by case basis.

* The international war crime of "aggression" prohibits the U.S. from invading Canada, Greenland, or Panama at this time.

* White South Africans are not facing genocide in South Africa and do not meet the legal criteria to be classified as refugees. The claims that White South Africans are been systemically murdered on account of their identity in South Africa are not true, and the most compelling pieces of evidence the President Trump presented in support of that claim in a White House meeting with the President of South Africa were actually evidence of mass killings of black women in the Democratic Republic of Congo and evidence of symbolic political protests in South Africa in which no one was physically harmed.

* Kilmar Abrego Garcia, a Maryland resident who was wrongfully deported to El Salvador, is not a gang members and evidence relied upon by President Trump to support that claim was photoshopped onto a picture of Mr. Garcia.

* The Alien Enemies Act relied upon President Trump for man deportations is not a valid legal basis to deport anyone because the U.S. is not experiencing an invasion within the meaning of the act as President Trump claims, as multiple judges, some appointed by President Trump himself have held, and as an investigation by U.S. government intelligence agencies that he commissioned established.

* The Alien Enemies Act does not legally authorize deportation without due process.

* Only Congress may authorize the suspension of the right to seek a writ of habeas corpus, and only in places where the federal courts are unable to operate. See Ex parte Milligan, 71 U.S. (4 Wall.) 2 (1866).

* A core principle of federal law is that every person, whether or not that person is a U.S. citizen, and whether or not that person is a criminal or terrorist, is entitled to due process before being detained or deported.

* It is a core principle of U.S. constitutional law that every person born in a U.S. state, who does not have diplomatic immunity at the time, is a U.S. citizen. This includes the children of illegal immigrants. No U.S. court has ever ruled to the contrary since the 14th Amendment to the U.S. Constitution, which gave rise to this right, was adopted.

* It is illegal for the President to fire members of an independent agency board without cause. Humphrey's Executor v. United States, 295 U.S. 602 (1935), was a decision of the Supreme Court of the United States that ruled that the U.S. Constitution allows the U.S. Congress to enact laws limiting the ability of the President of the United States to fire the executive officials of an independent agency that is quasi-legislative or quasi-judicial in nature.

* The President's authority to unilaterally impose tariffs without an act of Congress doing so is very doubtful, and mere trade deficits with a country are not a valid legal basis for doing so.

* The President has a legal duty to faithfully execute the U.S. Constitution and the laws of the United States.

* Every public official in the United States has a sworn duty to uphold the U.S. Constitution.

* The fact that the President has been held to have immunity from criminal and civil liability for his official acts does not mean that the President is legally entitled to violate the law, it just limited the legal remedies that are available when he does.

* The fact that the President has been held to have immunity from criminal and civil liability for his official acts does not mean that the President's subordinates charged with carrying out the President's orders also have immunity from criminal and civil liability for their official acts, if they are not judges or prosecutors and the claims are related to their participation in the legal process.

* Trump admitted on TV shortly after he announced tariffs to helping his billionaire friends engaged in insider trading on his tariff news. Many members of his administration and many Republicans in Congress have engaged in insider trading.

* Trump has sold access to the White House to mostly foreign investors in a meme coin he introduced after taking office for a second time. The coin has funneled hundreds of millions of dollars to Trump, enriched rich foreign investors, and produces big losses for almost all ordinary investors in the meme coin.

* Trump had basically a commercial for Tesla cars on the White House lawn after Elon Musk's political involvement (an advisor of the President so close that he has been called the co-President) with Trump and Nazi and far right, and Trump has quashed about a dozen federal investigations of Musk's companies, awarded Musk's companies many billions of dollars of government contracts without the usual government bidding process, and has insisted that countries do business with Musk's companies in trade negotiations.

* Members of Congress have an express legal right to inspect immigration detention facilities without notice even if the President orders the officials there not to allow them to do so.

* The President does not have the legal authority to revoke a non-profit organization's tax exemption without good cause, and may not do so for legally authorized good cause specific to eligibility to receive non-profit status for reasons not specific to eligibility for non-profit status under the Internal Revenue Code.

* The President does not have the legal authority to deny a higher educational institution the right to admit and teach international students entitled to student visas under the Immigration And Nationality Act without good cause specifically set forth in the Immigration and Nationality Act that is specific to eligibility to do so under the INA.

* The President does not have the legal authority to revoke a student visa, or any other person's immigration status, based upon the lawful free speech.

* It is a crime for IRS officials to share confidential tax information with the government to enforce non-criminal laws.

* It is a crime to use military personnel to enforce the laws within the United States. The law that says so is called the Posse Comitatus Act.

* The President does not have the legal right to blacklist a news reporting agency because he doesn't agree with the views expressed by that agency.

* Donald Trump is a convicted felon.

* Donald Trump is a legally adjudicated rapist.

* Donald Trump has been found repeatedly by the courts to have engaged in fraud, defamatory conduct, and illegal racial discrimination.

* Donald Trump is wealthy in large part because he inherited a large sum of money from his father.

* Six companies, including casinos, that Trump has owned have filed for bankruptcy.

* Trump's University had to settle a civil case against it for fraud for a large sum of money for fraud that Trump personally participated in.

* Trump's main business organization and one of its main executives were criminally convicted of tax fraud in New York during the most recent Presidential campaign.

* Trump and organizations he is affiliated with are notorious for not paying their bills when due. He is also notorious for not paying his lawyer's bills.

* Donald Trump has multiple multi-million dollar money judgments from courts that are currently enforceable outstanding against him.

* Donald Trump and his current wife have both acted in pornographic films. His current wife's primary employment prior to meeting Donald Trump was as an actress in pornographic films and her visa was obtained in the "genius" category despite the fact that she had no other meaningful professional or educational expertise, and she was not even a particularly success porn star.

* While they are not legally separated, Trump is de facto mostly separated from his wife and is notorious for subtly disrespecting her in public settings.

* Donald Trump paid $100,000 in hush money in an attempt to silence a prostitute he hired and then misreported it on financial statements.

* Donald Trump has repeatedly engaged in adultery during each of his many marriages.

* Donald Trump has publicly stated that he doesn't know if he has a legal duty to obey the U.S. Constitution despite twice swearing oaths to uphold it as President of the United States.

* Donald Trump is legally prohibited from operating any business or charity in the State of New York as a result of separate business and charitable fraud cases.

* Donald Trump was legally found by a Colorado trial court, in a decision whose factual determinations were affirmed by the Colorado Supreme Court, and which were not found to be incorrect on the merits by the U.S. Supreme Court, to have engaged in an insurrection against the United States that would bar him from holding federal office. The U.S. Supreme Court overruled the decision of the Colorado Supreme Court only on the ground that the provision of the 14th Amendment which bars people who have engaged in insurrections against the United States from holding federal office is not self-executing and must occur in Congressionally authorized legal proceeding (contrary to strong arguments from the language of the U.S. Constitution, the legislative history of the 14th Amendment, and past precedents applying that constitutional provision).

* There is no legal or constitutional way that President Trump can hold the office of President for a third-term.

* There was no credible evidence that President Trump won the Presidential election in 2020, many attorneys who brought claims challenging that election where sanctioned or disbarred for bringing groundless and frivolous claims, and at least one elections official in Colorado was convicted of multiple state election law crimes in an effort to create that impression. Fox News paid more than $800 million to settle defamation claims to that effect in a lawsuit filed by a voting machine maker on the brink of trial in connection with those claims and another very strong defamation claim against it from another voting machine maker is currently pending.

* In President Trump's first four months in office, approximately four dozen court rulings have held that one or more of his Executive Orders is illegal. No President in U.S. history has issued Executive Orders at such a high rate, or had such a large percentage of his Executive Orders held to be illegal.

* Trump has, in a conspiracy with his physicians, repeated made grossly false statements about his height and weight.

* Trump dodged the draft multiple times during the Vietnam War by procuring a false medical excuse claiming that he had "bone spurs" from a doctor that conspired with him to do so.

* Trump was a transfer student to Wharton Business school whose admission was obtained with donations to the college from his father. It is know for certain that he was not a top student as he has sometimes claimed as he was never on the honor roll. He has jealously kept his academic records from Wharton secret but one of his past professors there characterized him as one of the least academically competent students that he ever had.

* Trump's father was a Ku Klux Klan member and a Nazi supporter.

* Despite Trump's America First trade stance, almost all of the merchandise he sells in his various businesses and for his political campaigns is made outside the United States, mostly in China.

* Many members of Trump's family and some of Trump's businesses have been greatly enriched personally in one-sides transactions meant to curry political favor with him.

* Trump was a close associate of Jeffrey Epstein, a famous procurer of child prostitutes for the rich and famous including British Prince Andrew, who died in prison after being convicted of related crimes, and Trump was a repeat visitor to Epstein's "sex island" and is shown in pictures surrounded by child prostitutes.

* Trump bragged in a recorded interview of sexually assaulting women.

* Trump has made sexually suggestive comments about his own daughters and was known to have abused his authority as a sponsor of beauty contests for minor girls to watch them undressed in the changing rooms associated with those contests.

* Trump on the campaign trail has mocked a disabled man for being disabled, denigrated veterans and prisoners of war (including Republican Senator John McCain) for being losers, and has encouraged people at his campaign rallies to use violence against hecklers at his rallies.

* Trump went out of his way, prior to being formally involved in politics, to denigrate five teenager who were wrongfully convicted of assault and rape of a jogger in a case occurring in Central Park in New York City in 1989, who were later exonerated by DNA evidence after serving prison terms (New York City later settled the civil case arising from the wrongful convictions for $41 million), and Trump stood by his actions (which may have contributed to their wrongful convictions) after the men were unequivocally exonerated.

* Despite being particularly popular with the Christian right to the point of being viewed as a messiah or saint by some, promoting bible sales to raise funds, and appointing an Evangelical Christian advisor, Trump is not at all religious and knows almost nothing about the Bible or Christian doctrine.

* Both Trump's FBI director and his attorney general in his current term were on the payroll of the Qatari government receiving large amounts of compensation from the Arab oil monarchy shortly before taking their current offices. The Qatari government recently gave Trump a $400 million jet liner for his personal use which his attorney general claimed did not violate constitutional or federal law limitations on receiving personal gifts from foreign governments. Trump's company has been pursuing a multi-billion dollar resort development project in Qatar at the time of this gift.

* No politician in U.S. history has ever publicly made false statements of fact at a rate as high as that of President Trump. Indeed, no one else even comes close.

* Vaccines do not cause autism.

* The measles vaccine is safe, effective, and the most effective way to prevent death or serious long term negative effects from measles.

* Trump's actions since he took office have significantly reduced the number of federal employees available to carry out air traffic control.

* Trump's actions since he took office have significantly reduced the number of federal employees and resources to predict the weather and response to weather related emergencies.

* No President in U.S. history has declined to provide emergency relief authorized by U.S. law to natural disaster victims at the rate that President Trump has in his second term.

* Trump has essentially dismantled federal enforcement of federal laws protecting the civil rights of women, racial minorities, homosexuals, and transgender individuals.

* No President in the history of the United States has made as many absurdly wrong statements of historical fact as Donald Trump (e.g., that there were air based during the American Revolution, or that the U.S. was an ally of the Roman Emperor, or that Mattel is a country).

* In his 2024 Presidential campaign, Donald Trump repeatedly made knowingly false claims that Haitian refugees in Ohio were stealing and eating cats and dogs, that that public schools were providing free sex change surgeries to transgender children at those schools.

* Many of the pardons issued by Trump have been to people who contributed to his political campaigns.

* Many of the people whom Trump pardoned for January 6, 2021 capitol riot charges have subsequently committed crimes in the four months since he pardoned them.

* President Trump has nominated a convicted felon, who is the father-in-law of one of his children, to be the U.S. ambassador to France.

* No President has had more subordinates and affiliates convicted of crimes than Donald Trump.

* No one other than Donald Trump has been impeached two separate times by the U.S. House of Representatives although neither of those impeachments were upheld by the required two-thirds majority of the U.S. Senate (in both cases the vote was largely on party lines, although a number of Republican Senators joined Democrats to convict in the second impeachment trial). In the second impeachment of Donald Trump, 57% of Senators voted to convict, the highest percentage other than the impeachment trial of Andrew Johnson in 1868 which failed to convict in the face of 35-19 votes to do so in the U.S. Senate when 36 voters were required to convict.

* Trump, in both his first and second terms, was the least popular President in the history of modern polling.

* Trump's anti-vaccination rhetoric, and pseudo-scientific medical claims about COVID-19, and his downplaying of the severity of the COVID-19 led to hundreds of thousands of preventable COVID-19 deaths in the U.S., primarily among elderly Republicans.

* Trump was indicted in four criminal cases which were still being tried during his 2024 Presidential campaign: a federal case arising from his involvement in the January 6, 2021 capitol riot, a federal case arising from his refusal to return top secret nuclear weapons information to the government that he was storing in a bathroom in his Florida resort, a Georgia case involving his illegal attempts to cause election officials there to engage in election fraud to elect him, and a New York State fraud case in which he was convicted of 34 felonies (but given no substantive criminal sentence in a sentencing hearing conducted after he was elected). The confidential records case was presided over by a federal judge he personally appointed in Florida, and dismissed on the legally dubious grounds that the special prosecutor statute was unconstitutional, with the case dismissed because Justice Department policy prohibits pressing criminal charges against a sitting President. The January 6 case was appealed on the grounds that he had absolute immunity from criminal charges for his official acts, which lower courts unanimously denied but the U.S. Supreme Court with had three justices he personally appointed who did not recuse themselves made the unprecedented decision over a strongly worded dissent that the President has absolute immunity from criminal prosecutions for his official acts. The charges in that cases were revised on remand to limit the case to Trump's unofficial acts (with considerable damning evidence revealed in a final report from the case) and then this federal case was dismissed because Trump was elected President and Justice Department policy is to not prosecute a sitting President.

* Trump routinely dresses inappropriately for state funerals and fell asleep in public during the funeral for Pope Francis.

Federal Court Reforms Worth Considering

1. Reduce The Scope Of Federal Court Jurisdiction

In terms of major top line categories, federal criminal cases break down as follows:

* Violent Crimes 2.4%

* Property Offenses 11.3%

* Drug Offenses 27.8%

* Firearms and Explosives Offenses 13.9%

* Sex Offenses 3.6%

* Justice System Offenses 0.9%

* Immigration Offenses 33.5%

* General Offenses 1.9%

* Regulatory Offenses 1.5%

* Traffic Offenses 2.2%

The single most commonly charged offense is illegal reentry by an alien which accounts for 27.5% of all federal criminal defendants. Like all immigration offenses, it has no state law equivalent, but there is no really compelling reason to make this offense a crime, rather than simply making it an administrative immigration matter that is a grounds for deportation and for denial of future immigration benefits. Improper entry by an alien accounts for just 0.6% of all federal criminal defendants but is another unnecessary federal immigration crime.

many federal crimes . . . are easily repealed and left to state and local authorities (with the estimated impact on the federal docket): Most federal homicides (0.1%), bank robbery (0.6%), kidnapping (0.2%), most racketeering offenses (0.6%), theft and embezzlement from banks and financial institutions (0.1%), many federal fraud offenses (0.7%), pornography offenses (1.7%), and all intrastate drug offenses (25.5%), for example, could be repealed.

Combined, repealing the crime of illegal re-entry by an aliens, and the other crimes suggested would reduce the federal criminal docket by 57.5% and probably a little more than that . . . This would also greatly shrink the federal prison system, although not proportionately, since the immigration offenses decriminalized typically involve short, often mere "time served" sentences.

Combined with a significant (roughly 51.9%) reduction in federal civil dockets by simply repealing 28 U.S.C. §§ 1331 (general federal question jurisdiction) which accounts for about 18.4% of cases that don't have an additional specific jurisdictional basis, and 1332 (diversity jurisdiction) which accounts for 32.9% of civil cases filed in federal court), these straight forward reforms could greatly reduce the importance of the federal courts . . . , thereby decreasing the stakes in federal judicial appointments below the U.S. Supreme Court level.

From here. 

2. Increase the Size Of The U.S. Supreme Court

Add 6 new justices to the U.S. Supreme Court, bringing the total number of justices to 15, initially 3 ultraconservatives, 3 conservatives, and 9 liberals.

The U.S. Supreme Court quorum should be reduced from six of nine justices now, to eight of fifteen justices, to prevent a boycott that undermines a majority decision.

The number of justices in an expanded Supreme Court needed to grant certiorari would be six or seven as determined by the court.

The U.S. Supreme Court should elect its own Chief Justice rather than having that post designated by the President and the U.S. Senate, in furtherance of the separation of powers.

A larger court might also have a greater capacity to handle more cases per term since there would be fewer lead opinions to write per justice.

3. Transfer Indian Country felonies from U.S. District Courts to a new court.

Tribal courts handle misdemeanors committed by Native Americans on Indian Reservations and civil cases. Generally, felonies committed on Indian Reservations, by both Native Americans and non-Native Americans, are tried in U.S. District Court by federal prosecutors. 

I would favor creating a new federal trial court system and corps of federal prosecutors and investigators who would handle felonies committed by Native Americans on Indian Reservations, which make up a large share of the "blue collar crime" docket in the federal courts, with appeals from these courts going to a new federal circuit court.

4. Discouraging Judge Shopping and National Injunctions

* Require cases in a U.S. District Court to be randomly allocated to the judges in the district.

* Require cases challenging the constitutionality or validity of a federal law or regulation to be heard by a three U.S. District Court judge panel. There would be a direct appeal of right to the U.S. Supreme Court in cases where the law or regulation is invalidated, except as provided below.

* Limit facial challenges of federal laws and federal regulations to a three U.S. District Court judge panel of the U.S. District Court for the District of Columbia (with appeals to the U.S. Court of Appeals for the District of Columbia Circuit). 

* Clarify that the statute of limitations for challenges to the process by which a regulation is adopted runs from the date that the regulation was adopted (overturning a recent U.S. Supreme Court precedent). 

* Limit the authority to enter a national injunction that binds the United States vis-a-vis anyone other than the parties to the case to a three U.S. District Court judge panel of the U.S. District Court for the District of Columbia (with appeals to the U.S. Court of Appeals for the District of Columbia Circuit).

5. Splitting The 9th Circuit, And A Merger

Form a new 12th Circuit consisting of California, Nevada, and Arizona, leaving the remaining courts in the 9th Circuit in Alaska, Guam, Hawaii, Idaho, the Northern Marina Islands, Montana, Oregon, and Washington.

As much as anything, this pre-empts less desirable splits. There would be no pressure based upon the number of judges or docket load to split up the rump 9th Circuit with its six states and two territories, and it would have a balanced red-blue mix. The new 12th Circuit with three states would still be very large in terms of its number of judges and docket size, and it would be even more dominated by California than the existing 9th Circuit, although it would also have a red-blue mix.

Splitting California up would lead to chaos, and moving Arizona from the 9th to 10th Circuits would also lead to complicated issues of which circuit's precedents applied to it. Circuits have also always had at least three states, which this plan would maintain. California, Nevada, and Arizona have strong economic ties and would benefit from having only a single circuit's precedents to govern them, which would not happen, for example, in a plan where California, Hawaii, Alaska, and the two territories were part of a new 12th Circuit.

The D.C. Circuit could be merged into the Federal Circuit.

A mentioned above, there would also be a new U.S. Court of Appeals For Indian Country.

The split would also leave 15 U.S. Courts of Appeal (twelve numbered circuits, the newly merged Federal Circuit, the Indian Country Circuit, and the U.S. Court of Appeals For the Armed Forces), one of which could be allocated to each justice in an expanded U.S. Supreme Court, as a circuit justice for that court.

6. Circuit splits.

One way to mitigate the harm caused by circuit splits, albeit at the cost of certainty in any particular circuit, would be to downgrade the effect of a precedent, even in the circuit in which it was decided, from binding precedent to persuasive authority, on any point of law with regard to which there is a live circuit split that has not been resolved by U.S. Supreme Court ruling, statutory change in the law, or a later en banc decision in the same case that the panel decided.

This would bring more judges into the process of considering the issue decided by the initial panel on the policy and precedent merits as a case of first impression, rather than pursuant to a precedent which has been seriously questioned.

If the panel decision downgraded to persuasive authority is well argued, it will still be followed. But, if it was poorly reasoned, other judges considering the issue will decline to follow it.

This rule would also put more pressure on the U.S. Supreme Court and Congress to resolve legal issues upon which circuit splits arise. This pressure should be present because many firms and organizations and even individuals need to take an action which will ultimately be subject to legal review in more than one circuit and a circuit split cements the inability of these people to predict the legal outcome of that issue since they don't know where it will arise.

 From here.

7. Habeas corpus and prisoner's litigation

In 2004, there were about 19,000 non-capital federal habeas corpus petitions filed and there were about 210 capital federal habeas corpus petitions filed in U.S. District Court. There are about 60 habeas corpus cases filed in the U.S. Supreme Court's original jurisdiction each year. The U.S. Courts of Appeal do not have original jurisdiction over habeas corpus petitions. . . . As of 2004, the percentage of federal habeas corpus petitions involving state death sentences was still about 1% of the total. . . . About 63% of issues raised in habeas corpus petitions by state court prisoners are dismissed on procedural grounds and about 35% of those issues are dismissed on the merits, while about 2% are either resolved favorable to the prisoner on the merits or remanded to a state court for further proceedings at the U.S. District Court level. . . . [A]study found that when habeas corpus petitions in death penalty cases were traced from conviction to completition of the case that there was "a 40 percent success rate in all capital cases from 1978 to 1995." . . . [Another study] puts the success rate in habeas corpus cases involving death row inmates even higher, finding that between "1976 and 1991, approximately 47% of the habeas petitions filed by death row inmates were granted." . . . about 20% of successful habeas corpus petitions involve death penalty cases. . . . As of 1991, the average number of federal habeas corpus petitions filed in the United States was 14 per 1,000 people in state prison, but this ranged greatly from state to state from a low a 4 per 1,000 in Rhode Island to a high of 37 per 1,000 in Missouri. 

The number of non-death penalty convictions reversed in federal habeas corpus proceedings is about 3 per 10,000.

From here.

These cases, and prisoner's litigation, are very numerous but often futile, in part due to harsh restrictions in the 1996 Prisoner Litigation Reform Act and the 1996 Anti-Terrorism and Effective Death Penalty Acts.

There were 9,690 prisoner's petitions, including habeas corpus petitions, out of 293,539 civil cases in U.S. District Court in the fiscal year ending September 30, 2023 (about half of the number filed twenty years ago in 2004), and about 3.3% of the civil docket. 

In the U.S. Courts of Appeal there are 9,089 prisoner's petitions out of 39,987 total appeals, in the same time period, and about 22.7% of all federal appeals.

Prisoner petitions constituted 69 percent of the civil pro se caseload. Civil rights actions accounted for 14 percent of the civil pro se caseload. The majority of prisoner petitions are filed pro se. . . . from 2000 to 2019, in 91 percent of prisoner petition filings, the plaintiffs were self-represented. In contrast, only 11 percent of non-prisoner civil case filings involved plaintiffs and/or defendants who were self-represented.

From here. 

A large share of filings in the U.S. Supreme Court are in forma pauperis (IFP) filings. In its 2022 annual report, the U.S. Supreme Court statistics were as follows:

The total number of cases filed in the Supreme Court decreased eight percent from 5,307 filings in the 2020 Term to 4,900 filings in the 2021 Term. 

The number of cases filed in the Court’s in forma pauperis docket decreased five percent from 3,477 filings in the 2020 Term to 3,288 filings in the 2021 Term. 

The number of cases filed in the Court’s paid docket decreased 12 percent from 1,830 filings in the 2020 Term to 1,612 filings in the 2021 Term. 

During the 2021 Term, 70 cases were argued and 63 were disposed of in 58 signed opinions, compared to 72 cases argued and 69 disposed of in 55 signed opinions in the 2020 Term. The Court also issued seven per curiam decisions in argued cases during the 2021 Term.

From here. 

About one in 470 IFP petitions are granted each term, while about one in 26 paid petitioners are granted each term. The IFP petitions are mostly, but not entirely, prisoner's petitions. 

This system isn't very functional either at providing relief for prisoners who have legitimate cases, or at managing cases without merit well. Access to the courts without counsel, particularly in the contexts of claims of wrongful convictions and prison conditions, is virtually meaningless. There are wrongs to be righted, amidst legions of bored prisoners with no downside in trying, but the current process does a poor job of sorting them.

At a minimum, this issue should be re-examined in good faith in search of a better solution.

8. Judicial ethics.

I would suggest two judicial ethics reforms:

* A rule that federal judges must recuse themselves from cases where the President or former President who appointed that judge is a party in a non-official capacity.

* A binding ethics code for the U.S. Supreme Court with the power to order a judge to recuse or impose other sanctions similar to those for other judges. Some violations would be criminal offenses.

9. Jurisdiction Over Corporations.

The recently overturned rule that a corporation may be sued, in general jurisdiction, any state in which it has an office for the conduct of business or an employee, should be reinstated by statute.

SCOTUS Frees Wrongfully Convicted Man On Death Row

In yet another reminder that prosecutorial misconduct is rampant in much of the nation, the U.S. Supreme Court summarily reversed a Louisiana court that had denied post-conviction relief to a death row inmate.  The prosecutors had withheld a great deal of solid evidence in their control suggesting that the man was innocent, a violation of the U.S. Supreme Court's Brady decision.

They defended the conviction despite other strong evidence that was a product of ineffective assistance of counsel that other witnesses could have strongly established an alibi defense.

Judges Alito and Thomas expressed concern that oral arguments weren't held and that the U.S. Supreme Court should wait until a federal habeas petition was filed despite the fact that the issues were already clear and the fact that this man had been incarcerated for eighteen years or so too long already.

The six member per curium majority strongly rebuked both the entire criminal justice system of Louisiana and the dissent that wanted to put barriers in the way of correcting the injustices associated with the 1998 murder.

Examples of misconduct like this one, which also violate the professional ethical rules for prosecutors (although these attorneys are almost never disciplined for this kind of misconduct), show how eager some prosecutors and courts and conservative justices are for blood, and how inflexible they can be once it is clear that they have made a mistake.

In principle, Louisiana could retry the man, but it is highly unlikely.

Should The U.S. Really Be Litigating This?

What is the worst kind of lawyer to have defend you in a federal murder trial?  Well, the worst would be representing yourself.  But, the next worst thing is being represented by a lawyer who isn't really a lawyer, paying $70,000 for the privilege, and being convicted after a trial in which your fake lawyer acted erratically at trial.

Gwen Bergman had that privilege in May of 2008.  The fraud was revealed in June of 2008, after she was convicted and the fake lawyer was sent to prison for nine years as a result.  Cases of people pretending to be attorneys when they really aren't attorneys are sufficiently uncommon, that neither clients nor opposing counsel systemically check to make sure that the credentials are real.  However it happened, this case fell through the cracks.  She's served seven years in prison and is currently on supervised release as a result of the defective trial.

Bergman isn't requesting an acquittal.  She's requesting a new trial on the ground that she didn't receive effective assistance of counsel, a Sixth Amendment right of every criminal defendant, because her lawyer turns out not to have been a lawyer.

The office of the United States Attorney in Denver that prosecuted the case is arguing that it doesn't matter that her lawyer wasn't a lawyer, because he was competent enough to give her a constitutionally fair trial.  They also argue that the fact that a licensed lawyer was hired at the last minute to act in basically a paralegal capacity but had some participation at trial purges the case of the taint of having an unlicensed lawyer in the first chair position.

But, honestly, while there are close cases and there are few "per se" rules when it comes to effective assistance of counsel, murder cases where the defendant's lawyer is not really a lawyer should not be close cases.  Criminal prosecutors, unlike other kinds of lawyers, have a special obligation.  Their mission statement is supposed to be to put the right people in prison for crimes that they commit while maintaining the integrity of the criminal justice system, not simply to maximize their conviction rates and not simply to secure maximal sentences.  Sometimes, events conspire to prevent a fair trial from happening even in the absence of any apparent prosecutorial misconduct and this is such a case.  There is nothing inherently wrong about a prosecutor conceding that a rare, clearly case deserves a "do over" in the interests of justice.  Indeed, the fact that it took this long to get to a hearing on the merits shows just how deeply flawed our system of collateral review of convictions can be.

Scalia On The Federalization Of Crime

Justice Scalia's comments to the American Bar Association on Saturday at its mid-year meeting in New Orleans on the growth in the size of the criminal docket are, for once, ones that I agree with:

[H]e's worried that the nation's highest court is becoming a "court of criminal appeals."

"This is probably true not just of my court, but of all the federal courts in general. A much higher percentage of what we do is criminal law, and I think that's probably regrettable. I think there's too much routine criminal stuff that has been pouring into the federal courts that should have been left to the state courts."

Scalia said civil dockets in some federal jurisdictions are lagging behind because criminal cases take precedence. He attributed the trend to lawmakers enacting new criminal statutes and bogging down the federal courts with "nickel and dime criminal cases that didn't used to be there."

"This stuff is just pouring into the federal courts. That's not what the federal courts were set up for," he said.

He also explained that for the most part the job of the U.S. Supreme Court is to resolve conflicts that arise over the intepretation of federal law in lower courts, while correcting isolated errors in lower courts only in rare and important cases.

Wikipedia (in language that is mostly mine; citations omitted) explains the comparative role of state and federal courts in the criminal justice system:

About 91% of people in prison at any given time in the United States were convicted in state court for violating state criminal laws, rather than in federal court for violating federal criminal laws, including 99% of defendants sentenced to death.

The proportion of criminal cases brought in state court rather than federal court is higher than 91% because misdemeanor and petty offense prosecutions are disporportionately brought in state courts and most criminal prosecutions involve misdemeanors and petty offenses. The number of trials conducted in each system is another way to illustrate the relative size of the two criminal justice systems. In Colorado, in 2002, there were approximately 40 criminal trials in federal court, and there were 1,898 criminal trials (excluding hundreds of quasi-criminal trials in juvenile cases, municipal cases and infraction cases) in state courts, so only about 2% of criminal trials took place in federal court. Most jury trials in the United States take place in criminal cases in state courts.

State courts do not have jurisdiction over criminal cases arising on Indian reservations even if those reservations are located in their state. Less serious crimes on Indian reservations are prosecuted in tribal courts. A large share of violent crimes that are prosecuted in federal court arise on Indian reservations or federal property, where state courts lack jurisdiction, since tribal court jurisdiction is usually limited to less serious offenses. Federal crimes on federal property in a state are often defined with reference to state criminal law.

Federal courts disproportionately handle white-collar crimes, immigration-related crimes and drug offenses (these crimes make up about 70% of the federal docket, but just 19% of the state court criminal docket). Federal courts have the power to bring death penalty charges under federal law, even if they arise in states where there is no death penalty under state law, but the federal government rarely utilizes this right.

Many rights of criminal defendants in state courts arise under federal law, but federal courts only examine if the state courts applied those federal rights correctly on a direct appeal from the conviction to the U.S. Supreme Court, after state court direct appeals have been exhausted, or in a collateral attack on a conviction in a habeas corpus proceeding after all state court remedies (usually including a state court habeas corpus proceeding) have been exhausted. Some rights of criminal defendants that apply in federal court do not exist in state court. For example, in many states there is no constitutional right to be indicted by a grand jury before facing a criminal prosecution for a felony or infamous misdemeanor. Two states (Louisiana and Oregon) do not require unanimous juries in non-capital criminal cases.

Unlike non-criminal cases, criminal proceedings in state courts are primarily conducted orally, in person, in open court.

A Bush administration policy, continued and expanded upon by the Obama Administration, of more frequently prosecuting people whose only offense is to have repeatedly re-entered the United States illegally as federal criminal offenses rather than simply administratively deporting these individuals, and a renewed wave of white collar crime prosecutions in the federal courts have both contributed materially to the criminal dockets of the federal courts. Federal drug, firearms and bank robbery prosecutions have plateaued, but remain bread and butter work for the federal courts. Another small and fairly stable, but very important element of the federal court docket consists of civil rights violation prosecutions, usually against bad cops and corrupt politicians.

While immigration offenses can only be prosecuted in federal court, white collar crimes, most of the drug offenses prosecuted in federal court, most of the firearms violations prosecuted in federal court, and almost all of the bank robberies prosecuted in federal court could be prosecuted in state courts. In drug and firearm cases, the federal court forum is largely chosen by state and federal law enforcement officials working in concert to secure mandatory minimum sentences for federal prosecutions that are more severe than the sentences that could be expected in state courts. White collar crimes and bank robberies are prosecuted in federal court mostly because federal law enforcement officials have developed more expertise in prosecuting these kinds of case and have more resources to do so.

Also, politically, the public tends to expect answers to every problem from every level of government, from the dog catcher to the President, and so politicans who want to be responsive to their constituents often see passing a federal criminal law doesn't really criminalize anything that wasn't already subject to prosecution under state and local laws, or under other federal criminal statutes, simply to look as if they are taking action to address the hot issue of the day.

I agree with Justice Scalia that the scope of federal criminal jurisdiction should be tamed. I don't think it makes much sense to use scarce criminal justice and incarceration resources to incarcerate someone whose only offense is illegally re-entering the United State and who will be deported when the sentence is up anyway. I don't think that it makes sense to prosecution bank robberies in the federal courts, while we prosecute all sorts of equally important robberies in the state courts. I don't think that the federal government should be prosecuting marijuana transactions that are legal under state law because of medical marijuana or marijuana decriminalization laws. I don't think that the federal government should be prosecuting any drug or firearms cases that don't involve interstate or international drug and firearm transactions. I think that it would be desirable to the balance of white collar crime prosecutions to shift a little more heavily in favor of state and local authorities, and a little less heavily in favor of federal authorities.

There are some white collar crimes that are intrinsically federal or involve so many states that it makes sense to prosecute the wide ranging scheme federally. There are some illegal transactions in drugs or firearms that necessarily cross federal lines, and ordinarily state law crimes like kidnappings, for example, often present multi-jursdictional issues not present in bank robberies. But, it is healthy for the system as a whole to limit the exercise of federal criminal jurisdiction to cases where it is not very workable to try the crimes in the state courts, and it is also makes sense for federal law enforcement to revisist the way it exercises its federal criminal jurisdictions to see if it really makes sense to devote the kinds of federal criminal justice resources it has in recent years to illegal re-entry cases, marijuana prosecutions, and non-commercial child pornography possession.

The federalism issues involved in prosecutions of crimes that would ordinarily be prosecuted in state courts when they occur on Indian Reservations or on federal law are important from a federalism perspective to be driven simply by considerations over the overall federal v. state role in the criminal justice system, but could benefit from further review to consider if the proper balance has been struck.

The law of federal habeas corpus is a mess. De facto, there is rigorous review of death sentences, moderately searching review of life without penalty of parole sentences, and virtually no effective review of any other kind of state court criminal justice convictions or sentences. But, the arcane doctrines by which our criminal justice system arrives at that result uses procedural bars to deny relief in a great many cases where it is deserved, devotes considerable resources to a great many frivilous cases, and has a level of complexity completely inconsistent with a process handled mostly by people not admitted to the practice of law.

Are You Smarter Than A Supreme Court Justice?

You know that the law of federal habeas corpus is broken when U.S. Supreme Court justices are deeply confused by it, and the lawyers arguing before them are having trouble explaining it, yet the only way a convicted state prisoner has a right to raise issues on federal habeas corpus appeal is without a lawyer.

Recall, that in Colorado, 99% of convicted criminal defendants have no education beyond a high school diploma, and that a large share are high school dropouts who do not even have a GED. Many don't speak English as their native language. Many, like the defendant in the case before the U.S. Supreme Court (a capital case, so he does have a pro bono lawyer), are mentally retarded.

Is it any wonder that federal habeas corpus reversals are common in capital cases, where criminal defendants typically secure pro bono lawyers at every stage of the process, while criminal defendants lose in 99% of non-capital cases where they are not represented by counsel?

Would it be any less fair to require inmates to solve calculus problems on their own to get relief, with calculus textbooks made available to the? Some inmates will get the right answer by dumb luck or with the help of a jailhouse lawyer, but the system unreasonably denies a fair hearing to the vast majority of people who have had their rights violated.

An intricate legal standard could make sense in the kind of case that only sophisticated parties engage in, the application of consolidated tax return regulations to multiple related corporate entities, for example. But, it makes no sense for sorting out the saved from the damned in a system where marginally literate prison inmates are representing themselves in federal court.

Worst Blawg Headline of the Week

The Ninth Circuit Appeals Court Rules Against Trial Judge

-- From the Crime and Consequences Blog

To be clear, the trial judge whose ruling was reversed wasn't a party to the case.

The appeals court simply reversed one of the trial judge's decisions regarding jury instructions given to a jury deadlocked on a criminal charge in a criminal case, a type of decision that often leads to appellate review, in part, because it is hard to characterize as harmless error. The appellate court decision was a close call. The 9th Circuit's decision was made by a 2-1 margin.

These facts, suggested by the headline, make this clearly a dog bites man case. Reversing trial court decisions is the reason that appellate courts exist, and the 9th Circuit, like all appellate courts, does this hundreds, if not thousands of times each year.

The case is unusual, but the reason isn't disclosed in either the headline or the blog post. Indeed, the headline was actually deceptive. The 9th Circuit actually affirmed the decision that it was reviewing on appeal. The appeal was by the government from the ruling of a federal trial judge who granted a state criminal defendant federal habeas corpus review.

What makes this case unusual is that the case granted relief to a convicted defendant on collateral habeas corpus review of a state trial court conviction that was affirmed on direct appeal, in a non-capital case. The criminal defendant was convicted of the burglary, robbery and rape of an elderly woman and sentenced to twenty-five years to life.

As my previous posts on habeas corpus jurisprudence have noted, this almost never happens. The federal judges engaged in habeas corpus review of the state conviction, had to find, and did find, that the California "Court of Appeal’s decision upholding the instruction was an unreasonable application of established Supreme Court law." This is the moral equivalent of finding that the state court judges committed malpractice.

It also defies the stereotype, which arises mostly because habeas corpus relief is mostly granted in death penalty cases which are most common in the South, that habeas corpus remains largely a civil rights tool to reform unreconstructed Southern states (like Texas).

The rare cases when habeas corpus relief are granted are rightly the focus of interest from the Crime and Consequences blog which is a tough on crime and pro-death penalty advocacy site. In general, its authors favor reducing the availability of habeas corpus relief, mostly because of its impact in death penalty cases, but also in non-death penalty cases because in non-capital cases the authors believe that it is a remedy that imposes a burden on the criminal justice system when resources would be better spent elsewhere, and because they believe that it raises federalism concerns to have federal courts collaterally review state criminal convictions. Looking at the rare cases where relief is granted, to see what was going on in those cases, allows the authors of that blog to make a case about how worthwhile this remedy is in the rare in non-capital cases where it actually provides a criminal defendant with relief.

But, the blog failed to make this point at all, leaving it to me, someone who more often disagrees than agrees with the blog's point of view, to make it. That's what makes that post the worst blawg headline of the week.

Scalia: It's OK To Execute Innocent People

U.S. Supreme Court Justice Scalia's position is that if someone have been found guilty and sentenced to death in a procedurally correct trial, that it is constitutional to execute that person even if it is later discovered that the person convicted did not commit the murder.

He stated in a recent dissent over a recent grant of an original habeas corpus petition by the U.S. Supreme Court in the case of Troy Davis, in the face of post-trial recantations by almost all of the witnesses against him and a confession of guilt for the murder by someone else who is in prison:

This Court has never held that the Constitution forbids the execution of a convicted defendant who has had a full and fair trial but is later able to convince a habeas court that he is "actually" innocent.

Professor Alan Dershowitz, at Harvard Law School, explains what this means:

Let us be clear precisely what [Scalia's dissent] means. If a defendant were convicted, after a constitutionally unflawed trial, of murdering his wife, and then came to the Supreme Court with his very much alive wife at his side, and sought a new trial based on newly discovered evidence (namely that his wife was alive), these two justices would tell him, in effect: "Look, your wife may be alive as a matter of fact, but as a matter of constitutional law, she's dead, and as for you, Mr. Innocent Defendant, you're dead, too, since there is no constitutional right not to be executed merely because you're innocent."

Justices Scalia, Thomas and Alito are extremists in their conservatism. Their utter lack of empathy has blinded them to the nature of the United States Constitution.

Six of the eight Justices of the U.S. Supreme Court (the two not in the majority are believed to be Scalia and Thomas) were not willing to take the extreme position of Justice Scalia in the Troy Davis case. Justice Sotomayor did not participate in the decision, but it is safe to assume that she would also not take the position of Justices Scalia and Thomas on the constitutionality of executing people who can demonstrate to a court that they are factually innocent.

Surely, as a matter of principle, this is not what the Founders or the political community today, expects the Constitution and its criminal justice system to do in these cases. And, there is solid evidence that innocent people are convicted of capital murder inaccurately. There are 135 people in the U.S. who have been exonerated as innocent after becoming one of the 7,469 people who have spent time on death row since 1973.

Losing The Battle, Winning The War

However, while Scalia and Thomas have lost this battle, in the war, their position has carried the day. The federal courts play a very small role in overturning state court convictions and sentences, granting relief about once per 20,000 inmates per year in non-capital cases, and about once per eight people sentenced to death (often vacating the death sentence but retaining a lengthy prison sentence).

Federal habeas corpus exonerations for actual innocence under current law probably not more than about 3 people in non-capital cases, and 1-2 people in a capital case per year, nationwide. These numbers make the original petition to the U.S. Supreme Court habeas corpus process used in the Troy Davis case this month for the first time in half a century look like an attractive approach to handling these cases, as merits review of discretionary grants of actual innocence petitions (particularly if limited primarily to death penalty cases), when granted, are unlikely to overwhelm the U.S. Supreme Court, and the U.S. Supreme Court already has a system designed to screen the most meritorious cases from a flood of petitions, including thousands of pro se, in forma pauperis petition, many of which have little merit.

In a state like Colorado, that translates into one successful non-federal habeas corpus petition each year, and a reasonable possibility that one of the handful of people on death row might prevail in federal habeas corpus review.

Almost no one not facing a death penalty ever wins relief in federal habeas corpus review (about 65 will prevail out of the 18,000 cases filed each year by members of a 1.25 million population of non-death row state prisoners), and neither actual innocence based on newly discovered evidence, nor ineffective assistance of counsel, is a basis for relief in almost any of those very rare wins for federal habeas corpus petitioners, despite the fact that it is claimed in about half of those 18,000 cases. In a large share of non-capital cases, a guilty plea precludes an actual innocence claim on habeas corpus review outside the kind of absurdly clear circumstances that Alan Dershowitz suggests, something that almost never happens in real life.

It is a fair guess, based upon the experience in rape and murder cases, that the actual number of people in state prison who were convicted of crimes when they were factually innocent is on the order of 8,000-40,000. Clearly, the vast majority of these individuals never receive relief from their inaccurate convictions under the current system.

Indeed, in the roughly 90%-95% of cases where there is a valid plea bargain to a non-capital charge, and in the roughly 70%-80% of cases that go to trial and produce sentences that do not involve incarceration or are to prison terms of five years or less, together making up more than 97%-99% of state cases, it does not make sense to make any federal review based upon claims of actual innocence or ineffective assistance of counsel available at all -- something that the existing system effective does in practice by requiring exhaustion of state law remedies. Once direct appellate review and first collateral review of theses cases in state court is complete, the sentences involved are typically likely to be very close to completion before it is possible to complete the process involved in federal habeas corpus review.

These numbers also highlight the fact that in most cases plea validity, a fundamentally procedural issue, is the only guilt-innocence question in a case. One may, however, be particularly concerned about plea validity by innocent people when a plea is made in the shadow of a possible death sentence, or life in prison without parole sentence, preceded by a trial before a "death qualified" jury which is systemically more likely to convict as well. The fact that those given long sentences disproportionately go to trial, while those given short sentences disproportionately have accepted plea bargains, also reinforces the idea that there is a very large percentage of ordinary state law felony cases in which federal habeas corpus review of actual innocence may have few benefits, while involving high costs if this is raised in a large percentage of cases.

This would leave something on the order of 13,000-38,000 people eligible to make these kind of federal habeas corpus claims. If the actual innocence rate were 3% among this group of people, close to the rate suggested by capital case litigation, there might be about 40-115 people in the prison system who were factually innocent and would have a real possibility of securing relief on this basis through federal habeas corpus.

Those facing the death penalty prevail in federal habeas corpus review at a much greater rate (more than 12% prevail of the 210-240 federal habeas corpus cases filed each year in capital cases by members of a 3,300 population of death row state prisoners, and federal habeas corpus relief petitions are filed ultimately in almost every capital case), post-conviction review success as a whole in capital cases (including both federal and state claims) is closer to 40-47%.

But even then, a claim of actual innocence prevails only infrequently. About 135 people have been found innocent after being convicted of murder and sentenced to death since 1973 when the death penalty was invalidated, out of 7,469 death sentences, and in about half of those, relief could theoretically still be granted on this basis (although the percentage where this is a likely result at this point and being seriously litigated is much smaller than half of the total). Thus, actual innocence is established is something on the order of 2% to 3% of death penalty convictions, about 5-8% or less of the cases where a defendant prevails in some way on habeas corpus review.

Most relief in capital federal habeas corpus cases are based upon procedural issues with the trial and invalidate either the death sentence, or one criminal charge among many serious charges, while leaving the convicted murderer in prison for life or something close to life.

Death penalty cases are simplified by the fact that almost no one who is sentenced to death does so by plea bargain, and that almost no one who attempts to enter into a plea that allows for the death penalty asserts that they are actually innocent on habeas corpus review. Agreeing to a death sentence strongly suggests either ineffective assistance of counsel, or lack of competency to represent oneself, if counsel is refused.

In part, actual innocence capital cases are rare because state court action, executive clemency powers, the death of a prisoner prior to execution in prison, and the completion of prison terms that render relief moot in non-capital cases, have removed some of the most plausible claims of actual innocence from federal habeas corpus review. Also, some actual innocence cases identify procedural flaws that prevail on habeas corpus review, rendering actual innocence analysis unnecessary.

And, there are many cases where the fact that the defendant committed a murder are practically indisputable, due to properly analyzed physical evidence or a credible confession, for example. DNA analysis in rape cases put wrongful conviction rates at about 10% of cases that go to trial (recall also that plea bargains take the vast majority of cases outside the realm of guilt or innocence analysis, so wrongful convictions in rape cases are closer to 1-2% of cases prosecuted).

Efforts like the Innocence Project, that involve third parties that try to identify cases where actual innocence can be established using their own internal procedures, rather than formal court managed due process, and then build evidentiary cases with investigations and take over post-conviction litigation make up a large share of post-conviction review successes, particularly in non-capital cases.

Is Habeas Corpus Worth It?

Statistically speaking, very few federal habeas corpus petitions of people in state prisons pursuant to convictions, which are typically filed as collateral attacks to convictions or sentences, prevail.

There are exceptions. Death penalty convictions are overturned much more frequently, for example.

One important reason that federal habeas corpus petitions are of so little use to state prisoners, is that relatively few state prisoners can meet the federal law requirement that they exhaust remedies under state law before being entitled to have their claims considered by federal courts. The vast majority of federal habeas corpus petitions are dismissed for procedural flaws or for failing to state a claim for relief, even if the facts alleged were true. It takes about five years, on average, to exhaust all state court remedies, according to data in the Essay cited below (which is familiar and consistent with other studies). Yet (citations omitted and some notes brought into the body text from footnotes):

For the latest year with available data (2004), 60% of all defendants who were convicted of felony crimes in state court did not receive any prison sentence at all, and the average prison sentence for the remaining 40% was less than five years. According to 2002 data, a prisoner serving an average sentence is released in less than three years. . . almost 30% of all noncapital habeas petitions were filed by inmates serving life sentences, even though only 1% of all prison sentences are for life (life sentences make up 1.1% of prison sentences but 24.1% of sentences for murder or nonnegligent manslaughter). On the other hand, only 12% of all noncapital habeas petitions were filed by those serving sentences of five years or less, even though that group represents the majority of all those who are sent to prison. Because most federal habeas cases will not be resolved until years after the original conviction and sentencing, only inmates who receive life or other very long prison sentences will be in custody long enough even to file.

Also, more than 90% of convictions are the result of plea bargins, something that greatly narrows the grounds for appeal.

This isn't neessarily a bad thing, however. Indeed, there are two positive aspects of the exhaustion requirement and limited remedies available in plea bargined cases.

First, it limits federal intervention in state criminal justice largely to cases where the stakes for the incarcerated individual are high. This subcategory of cases is important, about 20% of people incarcerated in California, for example, are serving life sentences.

Second, we care more about state criminal justice decisions that were not consented to by the defendant in open court.

Third, in a more subtle point, a broader proportion of cases in states that skimp on post-conviction review processes are subject to review by federal courts. In a state with only direct appeals, federal habeas corpus review would be available after just a couple of years. Habeas corpus was strengthened, historically, to discourage defiance by state courts of federal rulings and it has had that effect to a great extent, by causing legislatures to implement extensive post-conviction review procedures. While the Essay cited below argues strenuously that habeas corpus review does not offer a meaningful incentive for state courts to behave, I don't fully agree. On a case by case basis this might be true, but some rights are reviewable only on collateral attack of a conviction (e.g. ineffective assistance of counsel) and that review was previously unavailable for all practical purposes in state court, and state appellate courts are informed by federal decisions in direct review of convictions and sentences.

Another important reason that federal habeas corpus petitions are of so little use to state prisoners is that there is no right to counsel for a federal habeas petition. Complying with the highly technical law of federal habeas corpus without a lawyer is very difficult, and few state prisoners not on death row can secure the representation that they need to make out their claims properly. The is not a trivial issue. Indigent defendants are bureaucratically inept. Seven out of ten “fall in the lowest two out of five levels of literacy—marked by an inability to do such basic tasks as write a brief letter to explain an error on a credit card bill, use a bus schedule, or state in writing an argument made in a lengthy newspaper article." It is little wonder that they can't do the work of lawyers well.

The authors argue that the cost of providing lawyers in 18,000 federal habeas cases a year, many meritless by any measure, would be too great to be politically acceptable. This to is an issue I doubt. We provide public defenders of some sort in millions of cases per year. In cases involving plea bargains, the issues to analyze are narrow. It costs money, but probably not as much as taking the case to trial in the first place, in many cases, and legal representation might also dramatically reduce the cost of processing the claims in the courts. Handling cases with pro se parties is often much more difficult for the system than handling cases with lawyers involved. According to the Essay, these cases are mostly decided based upon paperwork:

[T]hese cases may appear to be less complex or demanding than other civil cases that states may litigate in federal court. Discovery and evidentiary hearings, for example, are rarely granted. . . . (0.3% of noncapital cases included deposition or examination; 0.4% included evidentiary hearing).

The cost of providing counsel could be lowered even more, if professionals with competence limited to criminal law or even merely to habeas corpus law (similar to tax preparers), were recognized, on the theory that they could jusifiably be paid less per hour than other legal professions.

Indeed, one solution may be to make the right, like the filing of all other federal lawsuits, contingent upon paying a filing fee, which in practice, would require some sort of third party (like an ACLU or a relative) to put some faith in the case, making a filing less than cost free. This very simple adjustment in the process would prevent habeas corpus cases from being a financial drain on the judiciary (indeed, it might become a cash cow, because habeas cases are handled very quickly by the magistrates and law clerks for the most part), while at the same time requiring somebody on the outside to vouch for the merit of a claim, providing a non-govermental screening process.

Two academics have written an essay which proposes a dramatic narrowing of the habeas corpus right on the largely practical grounds that allowing relief in classes of cases where the probability of success is very low is a waste of money better spent elsewhere (paragraph breaks added for ease of reading in blog form):

This Essay argues that federal habeas review of state criminal cases squanders resources that the federal government should be using to help states reform their systems of defense representation.

A 2007 empirical study reveals that federal habeas review is inaccessible to most state prisoners who have been convicted of noncapital crimes and offers no realistic hope of relief for those who do reach federal court. As a means of correcting or deterring constitutional error in noncapital cases, habeas is failing and cannot be fixed.

Drawing upon these findings as well as the Supreme Court’s most recent decision applying the Suspension Clause, the authors propose that Congress eliminate federal habeas review of state criminal judgments except for certain claims of actual innocence, claims based on retroactively applicable new rules, or death sentences.

The federal government should leave the review of all other state criminal judgments to the state courts and invest, instead, in a new federal initiative to encourage improved state defense services. This approach can deter and correct constitutional error more effectively than any amount of habeas litigation ever could.

I'm don't entirely agree, although they do have a point. Certainly, the federal government has the power to increase funding of state defense services, and probably to impose minimum standards on the provision of these services under the enforcement clauses of the 14th Amendment and other constitutional amendments, and it might do some good if they did. It isn't obvious that this proposal is any stronger if it is linked to federal habeas corpus review -- it isn't even clear that the politics of the proposal change much. And, strategically, a temporary budget change is a poor reason to change a permanent law governing judicial review of state court judgments.

The authors note that historically, there was little role for federal review of state convictions. Federal statutes rarely directly regulate the state court criminal justice system, and there are serious questions, even in modern federalism which favors federal power generally, over whether such statutes, if enacted, would be constitutional in many cases. So, the grounds for federal court jurisdiction in most state criminal cases is the United States Constitution. But, prior to the 1960s, few rights guaranteed under the federal constitution were held to be applicable to state courts. The "incorporation doctrine" which holds that the 14th Amendment protection for due process necessarily protects the rights identified in much of the Bill of Rights in criminal cases, constitutionalized criminal procedure, creating many more issues that could be raised in federal court.

In the 1950s, as a result, few federal habeas corpus petitions were filed and few prevailed. Some of the key facts are laid out in footnote 19 of the Essay (citations omitted, paragraph breaks added):

In 1958, only 755 applications for habeas relief were filed in federal district courts; in 1962, only 1232. In 1960, the state prison population stood at 189,924. Assuming that about twelve hundred habeas petitions were filed in 1960 (as there were in 1962), that is a rate of roughly one petition for every 166 prisoners, even though federal habeas was the only meaningful postconviction remedy for most prisoners because most states had not yet adopted their own effective postconviction procedures.

By 2004, this ratio had more than doubled, to about one federal petition for every sixty-seven state prisoners . . . ( . . . 18,552 petitions were filed in federal district court in 2004[; there was a] state prison population of 1,244,311 in 2004).

Rates of habeas relief were also low during the late 1950s. [In 1956] on average federal courts order release of only one habeas petitioner per year [and] between 1949 and 1958 there were 6239 applications for habeas, but only 98 petitioners were successful in district courts from 1946 to 1957); [O]nly five of 668 habeas applications—less than 1%—were granted in 1955.

The grant rate for habeas petitions remains very low:

The grant rate for noncapital cases has dropped from 1% in the early 1990s to only 0.34% today [likely due to changes in federal law]. Only eight of the 2384 noncapital habeas filings the study examined resulted in a grant of habeas relief, and one of those eight grants was later reversed on appeal. At this rate, we estimate that fewer than sixty-five of the more than 18,000 petitions filed each year by noncapital petitioners will eventually be granted by district courts.

Other studies agree finding (citations omitted) that:

(grant rate of 1% for more than 2000 habeas cases terminated in 1992); (grant rate of 3.2% for 1899 cases from six districts filed from 1975 to 1977); (grant rate of 3–4% for 585 cases filed from 1973–1975 and 1979–1981 in Southern District of New York); (analyzing more than 1600 cases terminated in 1990 and 1992 from eight districts in four states and finding grant rate of less than 1% for most claims); (grant rate of less than 4% in District of Massachusetts between 1970 and 1972); (average petition grant rate of 3.5% in fiscal years 1963 (forty-two of 1662 granted), 1964 (125 of 3220) and 1965 (154 of 4186)).

One important reason that grant rates are so low is that it is hard to prevail on an ineffective assistance of counsel claim, yet 90% of cases plea bargain, often making that the only possible argument in those cases. In 2004, "95% of state felony convictions followed guilty plea." Numerically, this is an important issue:

A claim of ineffective assistance of counsel in trial or appellate proceedings was raised in about half of the 2384 noncapital cases the Vanderbilt-NCSC study assessed. Only one of those claims was granted; that grant was later reversed.

While defense counsel are good, the notion that counsel was not constitutionally ineffective in any of the roughly 50% of 18,000 non-capital federal habeas corpus petitions where it was raised each year (an aggrieved subset of all persons sentenced to long felony terms each year), seems implausible.

Notably, in "2007, there were 232 capital petitions and 18,907 noncapital; in 2006, 236 and 18,959; in 2005, 229 and 18,961; in 2004, 214 and 18,431." The U.S. Supreme Court averages six capital cases per term. Capital cases are much more likely to prevail in habeas corpus review: "During the years prior to AEDPA, federal courts invalidated capital judgments in two of every five cases. After AEDPA, that rate appears to have declined, but remains much higher than in noncapital cases." The most recent study showed a grant rate of 12–13% among 267 terminated capital cases, with 95 cases still pending.

Mixed Result For Al-Marri In En Banc Review Ruling

There have been just two people detained as enemy combatants in the United States.

One, Jose Padilla, a U.S. citizen, was criminally prosecuted for conspiracy and his enemy combatant status was vacated before his case was fully litigated, leaving in place a bad precedent in a moot case. Padilla was ultimately convicted and sentenced to a long prison term. His case is now being appealled in the civilian courts.

The other, al-Marri, is a non-citizen legally in the country, was criminally prosecuted, after which he was removed from the criminal justice system upon being declared an enemy combatant.

The controlling 5-4 per curiam ruling in his case states:

PER CURIAM:

Ali Saleh Kahlah al-Marri filed a petition for a writ of habeas corpus challenging his military detention as an enemy combatant. After the district court denied all relief, al-Marri noted this appeal. A divided panel of this court reversed the judgment of the district court and ordered that al-Marri’s military detention cease. See Al-Marri v. Wright, 487 F.3d 160 (4th Cir. 2007).

Subsequently, this court vacated that judgment and considered the case en banc. The parties present two principal issues for our consideration: (1) assuming the Government’s allegations about al-Marri are true, whether Congress has empowered the President to detain al-Marri as an enemy combatant; and (2) assuming Congress has
empowered the President to detain al-Marri as an enemy combatant provided the Government’s allegations against him are true, whether al-Marri has been afforded sufficient process to challenge his designation as an enemy combatant.*

Having considered the briefs and arguments of the parties, the en banc court now holds: (1) by a 5 to 4 vote (Chief Judge Williams and Judges Wilkinson, Niemeyer, Traxler, and Duncan voting in the affirmative; Judges Michael, Motz, King, and Gregory voting in the negative), that, if the Government’s allegations about al-Marri are true, Congress has empowered the President to detain him as an enemy combatant; and (2) by a 5 to 4 vote (Judges Michael, Motz, Traxler, King, and Gregory voting in the affirmative; Chief Judge Williams and Judges Wilkinson, Niemeyer, and Duncan voting in the negative), that, assuming Congress has empowered the President to detain al-Marri as an enemy combatant provided the Government’s allegations against him are true, al-Marri has not been afforded sufficient process
to challenge his designation as an enemy combatant.

Accordingly, the judgment of the district court is reversed and remanded for further proceedings consistent with the opinions that follow.

*We deny the Government’s motion to dismiss this case for lack of jurisdiction. The Government relied on section 7 of the Military Commissions Act (MCA) of 2006, Pub. L. No. 109-366, 120 Stat. 2600, which amended the Detainee Treatment Act (DTA) of 2005, Pub. L. No. 109-148, § 1005(e)(1), 119 Stat. 2680, 2741-42. After we heard en banc argument in this case, the Supreme Court declared section 7 of the MCA unconstitutional. See Boumediene v. Bush, 553 U.S. ___, ___, slip op. at 64 (June 12, 2008). The Government now concedes that we have jurisdiction over al-Marri’s habeas petition.

Thus, Chief Judge Williams and Judges Wilkinson, Niemeyer, and Duncan voted with the government on both issues, while Judges Michael, Motz, King, and Gregory voted against the government on both issues. The swing vote was Judge Traxler who upheld the government's authority to detain Al-Marri if the allegations made were true, but stated that Al-Marri was not afforded sufficient due process, so that further proceedings are required.

The highly divided en banc panel of the 4th Circuit (links are available at How Appealing) reached its decision in a 5-4 vote that spawned seven opinions.

Either parties may either further appeal to the U.S. Supreme Court, which refused to grant certiorari prior to the en banc decision, or may see what happens upon remand. SCOTUS blog reports that Al-Marri plans an appeal to the U.S. Supreme Court, while the government is willing to let the ruling stand and proceed to dealing with the case on remand.

The best indication of the rights that Al-Marri will have on remand flow from swing Judge Traxler's concurring opinion. This states:

The general rule, therefore, is that al-Marri would be entitled to the normal due process protections available to all within this country, including an opportunity to confront and question witnesses against him. But, if the government can demonstrate to the satisfaction of the district court that this is impractical, outweighed by national security interests, or otherwise unduly burdensome because of the nature of the capture and the potential burdens imposed on the government to produce non-hearsay evidence and accede to discovery requests, then alternatives should be considered and employed. Given the grave national security concerns in matters such as this, and that the Rapp Declaration references not only al-Marri’s activities in this country but also those he engaged in abroad prior to his entry here, the Rapp Declaration might conceivably prove to be "the most reliable available evidence" within the meaning of Hamdi, at least as to some allegations. However, I am not satisfied to let matters stand as they are when the government has not even been required to demonstrate to the district court why it cannot or should not be required to produce, even for ex parte examination, any of the supporting evidence relied upon by Rapp to justify al-Marri’s detention. Here, the government has made no showing that "[h]earsay . . . [needs] to be accepted as the most reliable available evidence from the [g]overnment" or that the "exigencies of the circumstances . . . demand . . . [that the] enemy combatant proceeding[ ] . . . be [otherwise] tailored to alleviate their uncommon potential to burden the Executive at a time of ongoing military conflict." Hamdi, 542 U.S. at 533-34; cf. Boumediene, slip op. at 64-65 ("Practical considerations and exigent circumstances inform the definition and reach of the law’s writs, including habeas corpus. The cases and our tradition reflect this precept.")

In other words, the government will be required to present some real evidence and to justify decisions to withhold evidence on an individualized basis, but may still be permitted to withhold some evidence from Al-Marri.

This ruling, on the power of the President to treat someone outside a war zone in the continental United States as an enemy combatant is the most important of all the war on terror cases other than Padilla, because the habeas corpus rights of people within the United States have a far greater impact on the typical American or American immigrant's constitutional rights. It does not appear to overrule the troubling Padilla holding, although it does appear to narrow it.