Federal habeas review of state non-capital cases under the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) is widely regarded as deeply flawed for producing a huge volume of costly litigation and very little relief. Many scholars have called for AEDPA’s repeal and a return to more robust federal review, but recently, several prominent commentators have suggested more dramatic change— radically limiting federal habeas in exchange for more fruitful reform efforts. In an era of limited criminal justice budgets and an increasing focus on efficiency, these proposals are likely to proliferate. This Article lays out a needed empirical and theoretical foundation for the debate over habeas’s future. To date, no one has estimated how much federal habeas actually costs (and thus the potential savings from eliminating it), a figure necessary for assessing the feasibility and desirability of any radical reform scheme. This Article fills that gap, using available budget data, public records requests, and correspondence with state officials to estimate that figure at roughly $327 million per year.
This sum, a tiny fraction of criminal justice spending and barely a blip in state and federal budgets, places recent reform proposals in a new light: it is possible that these proposals have failed to gain more traction because they would not free up sufficient funds to please either habeas proponents or opponents. The federal habeas system is one of the only mechanisms through which federal courts may reveal state violations of defendants’ constitutional rights, and it retains both instrumental and symbolic value. Further, getting rid of the watered-down version of individual review that remains under AEDPA would likely be difficult to reverse, making a more robust system harder to realize in the future. Any proposals to curtail this system in exchange for state reforms therefore have a high barrier to overcome with habeas proponents. For federal habeas opponents, the current federal system is not particularly costly, either financially or otherwise, since so few petitioners obtain relief. Given the small cost of the current system, and thus the limited financial savings available, radical reform is probably unlikely, regardless of the desirability of any individual proposal. This Article therefore proposes more modest measures to make the current system more functional. One of these proposals is to ensure that federal habeas under AEDPA, despite statutory silence on the issue, is not blind to the quality of state postconviction processes.