Procedure v. Innocence (ctd.)

Time for a quick clarification of my defense of the 9th Circuit this afternoon.

Responding to a defense of the 9th Circuit’s actions in refusing to permit an untimely habeas petition based on the prisoner’s “actual innocence” on the grounds that the statutory language the 9th Circuit upheld is clear, Radley Balko writes:

Which is a damned good argument in favor of some “judicial activism” striking down the statute. Or at least amending it. The whole idea of judicial review is pretty much meaningless if it can’t overcome a law that would allow an provably innocent person to remain in prison.

I am fully on board with so-called “judicial activism” in many, many cases, and especially in criminal procedure cases.  But, unfortunately, this is not one of them.

The reason judicial activism does not make sense here is that it wouldn’t address the underlying problem that was before the court, which was, in essence: “when should a court open an inquiry into whether a habeas petitioner is entitled to relief in the first place?”  This is an essential question because judicial resources are extremely limited, and a full-blown habeas hearing to inquire into someone’s actual innocence requires a huge chunk of those limited resources.  Indeed, a better way to phrase the question before the Court might even be “when should a court, through a habeas proceeding, invest substantial resources to determine whether a prisoner is ‘probably innocent’?”

While it would be great to answer this question as “whenever there are allegations that, if proven, would make a conviction unreasonable,” such a standard is impossibly low, leaving courts with little ability to handle a sizable chunk of their remaining workload.  And the number of additional, truly meritorious habeas petitions this would ferret out would almost certainly be exceeded many times over by the harm caused to other litigants (and/or innocent defendants) from the loss of resources dedicated to their cases.  In other words, the ideal answer is not a very realistic answer.

So where to draw the line so as to ferret out the meritorious habeas petitions without expending an excessive amount of court resources on all-too-often frivolous such petitions?  No answer here will be perfect. 

However, a line that attempts to allow hearings where a prisoner had literally no control over the introduction of the exculpatory evidence (ie, that evidence is discovered only long after the fact) while also providing a reasonable amount of time for the prisoner to, in effect, second-guess his attorney is a line that at least guarantees that every person who is actually innocent has an opportunity to collaterally attack their conviction via a habeas petition.  There will certainly be some innocent prisoners who fail to take advantage of this opportunity in a timely fashion, and that may well be what happened in this case.  This is incredibly sad, and the fact that their appeals for a pardon will likely fall on completely deaf ears is a travesty that demands reform of our pardon process.

Unfortunately, though, there is no way of creating a workable rule for when a habeas hearing should be granted that will prevent this from happening.   There may be steps that can be taken to reduce its occurence without substantially increasing the burden on the judiciary, but there will always be some who fall through the cracks without getting a hearing at all because we simply lack the resources to give a hearing to everyone who wants one.

In this case, sadly, a hearing was held before the 9th Circuit had the opportunity to review whether a hearing was appropriate at all.  We cannot unlearn the results of that hearing, in which the judge found that the defendant was most likely innocent (a conclusion that may or may not be accurate), and quite possibly the 9th Circuit erred in making its decision retroactive.  But that does not make the refusal to extend the exception to the statute of limitations to “actual innocence” the wrong decision.