Is Guilt Dispositive? Federal Habeas After Martinez

Federal habeas review of criminal convictions is not supposed to be a second opportunity to adjudge guilt. Oliver Wendell Holmes, among others, has said that the sole question on federal habeas is whether the prisoner’s constitutional rights were violated. By the early 1970s, however, scholars criticized this rights-based view of habeas and sounded the alarm that postconviction review had become too far removed from questions of innocence. Most famously, in 1970 Judge Friendly criticized the breadth of habeas corpus by posing a single question: Is innocence irrelevant? In his view habeas review that focused exclusively on questions of rights in isolation from questions of innocence was misguided. Over the last forty years the habeas landscape has changed so dramatically—through both statutory and common law limits on the writ—that it is appropriate to ask a very different question: Is guilt dispositive? Both substantive law and habeas procedure have evolved so as to substantially disadvantage a guilty habeas petitioner. In many cases, regardless of the merits of the constitutional claim, strong evidence of guilt is dispositive in ensuring that relief is denied. A recent trilogy of cases—Holland v. Florida, Maples v. Thomas, and most importantly, Martinez v. Ryan—signals a potential shift in the Court’s innocence orientation. This Article explores the potential impact of these decisions and, in particular, argues that they may provide a roadmap for a proceduralist approach to modern habeas review that prioritizes fair procedures over innocence. The impact of Friendly’s call for greater focus on innocence was gradual but profound, and this Article argues that the Martinez trilogy may be similarly important in reversing habeas’s four-decade-long infatuation with innocence

Challenging the Habeas Process Rather Than the Result

Habeas scholarship has repeatedly assessed whether the Antiterrorism and Effective Death Penalty Act’s (AEDPA’s) limitations on federal habeas relief were as severe in practice as they appeared to be on paper. By analyzing recent doctrinal shifts—particularly focusing on two Supreme Court decisions from this Term—and substantial new empirical data, this Article acknowledges that AEDPA’s bite has reached substantial proportions, in many ways exceeding the initial concerns and hype surrounding the legislation. More importantly, after acknowledging that federal habeas relief from state court convictions has become “microscopically” rare, this Article considers what the rarity of relief ought to mean as a prescriptive matter for federal oversight of state convictions. Contrary to the dramatic proposals of scholars who have recently suggested that the general futility of habeas litigation dictates that individual, case-by-case habeas review should be abolished, this Article seeks to regain intellectual and practical traction for the longstanding view that federal courts play an important role in overseeing and enforcing the Constitution. To be sure, the path to success for state prisoners on federal habeas review has become infinitesimally narrow, but the recent scholarly interest in abandoning federal review of state convictions in nearly all circumstances other than capital cases misses the mark. This Article suggests that the paucity of success by habeas petitioners does not naturally or necessarily justify the abandonment of federal oversight, as the scholarly trend suggests. Instead, scholars and courts should recognize the critical role federal courts play in ensuring that the state court process is fundamentally fair. Indeed, if the primary responsibility for substantive review now rests with the state courts, the need for federal oversight of the procedures is heightened. To this end, this Article makes the case for focusing more attention on the need for challenges of process rather than result and discusses novel methods, both under § 1983 and § 2254, for bringing such litigation. By focusing federal review on the adequacy of the state process, the deterrence model of federal oversight retains a position of importance and distinction, and principles of comity, federalism, and fair process are well protected

Ag Gag Past, Present, and Future

While the animal rights and food justice movements are relatively young, their political unpopularity has generated a steady onslaught of legislation designed to curtail their effectiveness. At each stage of their nascent development, these movements have confronted a new wave of criminal or civil sanctions carefully tailored to combat the previous successes the movements had achieved

Remember Not to Forget Furman: A Response to Professor Smith

Professor Robert J. Smith encourages readers, lawyers, and courts to forget Furman v. Georgia and to focus instead on death penalty challenges grounded in the diminished culpability of nearly all capital defendants. We applaud Professor Smith’s call to focus on the mental and emotional characteristics that reduce the blameworthiness of so many of those charged with capital crimes; recognizing diminished culpability as the rule rather than the exception among capital defendants conveys a reality that rarely finds its way into reported cases. We are troubled, however, by Professor Smith’s call to “forget Furman.” We believe the title and the article’s efforts to undermine Furman-based challenges disserve Professor Smith’s principal goal — addressing the United States’ broken death penalty system

Taking Voluntariness Seriously

Courts and commentators commonly claim that criminal law contains a voluntary act requirement. Despite the ubiquity of this assertion, there is remarkably little agreement on what the voluntary act requirement entails. This lack of uniformity is particularly problematic because, for some crimes, whether a defendant is guilty or innocent will turn on which conception of voluntariness is applied. In this Article, we critique the various conceptions of the voluntary act requirement, and propose an alternative set of principles for applying the notion that person is only criminally culpable for crimes committed voluntarily. First, culpability requires that the actus reus as a whole (rather than merely one element of the actus reus) be voluntary. Second, the voluntariness requirement is an affirmative element of every offense, with the prosecution bearing the burden of proving voluntariness. Third, the Constitution requires that voluntariness is a necessary condition of criminal liability. These principles resolve the inconsistent understandings of the voluntariness requirement and ensure that criminal liability is limited to those defendants who are responsible for prohibited activity

Free Speech and Democracy in the Video Age

The pervasiveness of digital video image capture by large segments of the public has produced a wide range of interesting social challenges, but also presents provocative new opportunities for free speech, transparency, and the promotion of democracy. The opportunity to gather and disseminate images, facilitated by the reduced expense and easy access to camera phones and other hand-held recording devices, decentralizes political power in transformative ways. But other uses of this technology represent potentially significant intrusions on property rights and personal privacy. This tension creates a substantial dilemma for policymakers and theorists who care about both free speech and privacy. Because of these putative social interests, laws governing video image capture are becoming more widespread across a number of different regulatory regimes, from Federal Aviation Administration regulations of drone recordings to bans on recordings of police officers performing their duties to so-called Ag-Gag laws, which criminalize the video recording of incidents of animal abuse at commercial agricultural facilities. In this Article, we examine constitutional theory and doctrine as applied to emerging government regulations of video image capture and propose a framework that will promote free speech to the fullest extent possible without presenting unnecessary intrusions into privacy interests. The Article first argues that video recording is a form of expression or, at the very least, is conduct that serves as a necessary precursor of expression such that it counts as speech within the meaning of the First Amendment. We continue with the novel argument that none of the features that make video recording a form of speech apply differently when the recording takes place on private property. Next, we examine under what circumstances video recording is constitutionally protected. We claim that video recording in public places or on private property with the consent of those recorded is presumptively protected speech under the First Amendment. But we also argue that the right to record attaches even when the recording is nonconsensual and occurs on private property, as long as the material recorded is a matter of public concern. While we acknowledge that the First Amendment does not limit the enforceability of generally applicable prohibitions on access to private property, we nonetheless suggest that a recording of activity that is a matter of public concern and is done by someone who is lawfully present on that private property is protected speech. That is not to say that all regulation of such recordings violates the First Amendment, and we therefore address when countervailing governmental interests might justify limitations on the right to record, including tangible property interests and reasonable privacy expectations. Throughout this part, we draw on examples of laws regulating video recordings to suggest how our proposed model for a right to record would apply in context. The First Amendment model developed in this