Scholars and criminal justice advocates have long lamented the difficulty of obtaining relief for federal constitutional violations that occur during state criminal proceedings.
The largescale and often systemic violations of federal constitutional rights that occur in the state system are well documented.
Yet, despite agreement by reformers that federal courts are better suited to the task of interpreting the United States Constitution and remedying violations of our founding document, it has become difficult for state criminal defendants to obtain review by a federal court.
Each of the three paths for doing so—the Supreme Court’s certiorari review on direct appeal, the Supreme Court’s certiorari review on a state collateral challenge, and federal district court review on federal habeas—has substantial procedural challenges.
Historically, the Supreme Court has rarely granted certiorari to review direct appeals of state criminal convictions or of state collateral challenges (that is, challenges to a conviction that is already “final”).
And for a variety of technical, but important reasons that this Essay explores, it is difficult for lower federal courts to address constitutional violations that occur in state proceedings through federal habeas review.
Indeed, one prominent scholarly work has described federal habeas relief as a “pipe dream.”
Although many scholars and jurists assume that it has become ever harder to vindicate federal constitutional rights, this Essay shows that, in a series of cases that have escaped public notice, the Supreme Court has opened up a previously limited pathway through which individuals can obtain review. This Essay documents this phenomenon and explores its significance, both for vindicating individual rights and for understanding the Supreme Court’s role in shaping those rights.
Most constitutional criminal procedure violations that occur in state court are not remedied because of complex procedural requirements and legal standards that imprisoned individuals often navigate without counsel.
Some criminal procedure issues—including ineffective assistance of counsel, the prosecution’s failure to turn over material evidence in violation of Brady v. Maryland,
or the retroactive applicability of new law—are far more likely to be (or must be) brought after a conviction is final.
What is more, it is challenging for imprisoned people to successfully navigate the unique procedural infrastructure that exists when they bring their claim into federal court. When a federal court—whether the U.S. Supreme Court or a lower federal court—sits in review of a state court judgment, it aims to balance the systemic federalism interests of comity to the states, the presumption of regularity within the state system, and the state’s interest in finality, against the individual’s liberty interest.
Due to a confluence of factors, including federal legislation and Supreme Court precedents, the available avenues for relief have narrowed over time.
Procedurally, there are three avenues through which a federal court can review a state criminal conviction.
First, the Supreme Court can review the case on direct appeal. Second, the Court can review a state collateral challenge in a posture that this Essay terms “direct collateral review”: After the case is final, a prisoner can challenge the conviction collaterally in state court and can appeal those decisions to the Supreme Court. Third, a federal district court can review a state conviction in the federal habeas posture.
Practically, relief is elusive. It is well documented that the Supreme Court rarely grants direct appeals from state criminal cases.
Moreover, in 1990, the Court articulated its presumption against granting direct collateral review,
observing that “[i]nstead, the Court usually deems federal habeas proceedings to be the more appropriate avenues for consideration of federal constitutional claims.”
Frustratingly, however, because of the “restraints imposed by the Antiterrorism and Effective Death Penalty Act of 1996” (AEDPA)—the federal habeas statute—robust review is no longer viable in federal habeas proceedings.
This Essay documents that, over the last five years, the Supreme Court has changed course with respect to one of the vehicles for vindicating constitutional criminal procedure rights: direct collateral review. To do that, this Essay carefully parses the Court’s “shadow docket”—the hundreds of orders, summary reversals, calls for responses, certiorari grants, and orders granting, vacating, and remanding cases, which the Court issues in addition to the ninety or so merits decisions that get most of the attention. Though rarely studied, this docket can reflect changes in Court behavior and viewpoint much more rapidly than the merits docket.
And in some areas of the law, the shadow docket is even more influential than the merits docket.
An analysis of the shadow docket over the last five years demonstrates that the Court is no longer constrained by its stated practice against review of state collateral proceedings. This Essay thus also makes a methodological contribution, demonstrating that analysis of the Court’s shadow docket is critically important to understanding the Supreme Court’s discretionary interventions and can provide earlier and more accurate pictures of the Court’s work.
Although the Supreme Court originally hewed to its presumption against conducting direct collateral review, granting cases in only the rarest of circumstances, by the 2015 Term, the Court silently reversed course and exhibited the exact opposite preference: a propensity for granting cases from state collateral review as against federal habeas review. In its 2015 Term, the Supreme Court decided five cases originating on state collateral review
—matching the prior five Terms combined
—and in its 2016 Term, the Court continued this practice, deciding four cases in this posture.
In the 2018 Term, the Court decided three cases in this posture, and its shadow docket reflects this change.
In 2019, the Court heard two direct-collateral-review cases on its plenary docket,
resolved another in summary fashion,
and granted one for its 2020 term.
To Court watchers, even consistently granting one or two cases of a single type is interesting, but granting so many cases of a variety the Court has stated a preference against is unheard of.
Nestled between direct review and federal habeas review at the Supreme Court is direct collateral review. Although it may sound like a contradiction in terms, it precisely explains what the Court does in this posture: It directly reviews a state collateral proceeding.
Like direct review, the Court’s basis for jurisdiction on direct collateral review is 28 U.S.C. § 1257.
But unlike direct review, direct collateral review introduces many of the complexities commonly associated with the federal habeas posture. It is a posture in which federal supremacy, state sovereign authority, and individual liberties converge.
It is a posture in which the Supreme Court has to choose between the state interest in finality and the individual’s liberty interest. It is a posture free from the procedural strictures of AEDPA, but that still navigates the difficult terrain between the state interest in finality and the federal interest in supremacy. It is this duality that creates real opportunities for criminal justice reform and real challenges to the Court’s jurisdiction. Procedure—and procedural posture—affects the development of substantive rights. By revealing this path, this Essay calls for scholars to think more critically about how the peculiarities of this procedural posture will affect the substantive development of criminal procedure rights.
This Essay thus sets out an analytical research agenda and starts the dialogue of critical issues that the Supreme Court must mediate to further develop criminal procedure doctrines.
Part I situates direct collateral review in the current dialogue and chronicles its emergence as a fixture of the Court’s docket. Part II, the heart of this Essay, offers a legal theory and normative defense for direct collateral review’s emergence. The current ecosystem of collateral review—primarily Congress’s passage of AEDPA and the Executive’s centralized control over federal criminal cases—has created the need for the Court to engage in direct collateral review in order to continue doctrinal development of issues likely to come up on collateral review. Accordingly, Part II shows that direct collateral review is the legal channel for developing constitutional law pertaining to criminal defendants’ rights, including retroactivity and mixed questions of law and fact such as ineffective assistance of counsel and failure to turn over material evidence under Brady. Part III then predicts and explores some of the challenges that direct collateral review will have to evolve to meet in the future.