Structural Change in State Postconviction Review

Lee Kovarsky*

Sandwiched between a state criminal trial and a federal habeas corpus proceeding is a lesser-known phase of criminal process called “state postconviction review” (“State PCR”). Whereas trials and federal habeas process have been lavished with centuries of legal attention,¹ State PCR is a younger phenomenon that has persisted in what one might call a state of malign neglect. There is no federal right to a state postconviction lawyer² because there is no federal right to state postconviction process at all.³ Until recently, State PCR was a phase of criminal process that federal institutions (if not scholarship)⁴ virtually ignored. Without federal intervention, it languished as an underfunded afterthought.

State PCR is a backwater no longer. The major structural changes lurking beneath the surface of American criminal punishment continue to undermine the premise that a meaningful “day in court” takes place in a single proceeding. Instead, a commitment to reliability increasingly entails effective collateral process, and the most potent doses of that process are available in state court. The growing need for postconviction review combines with restrictions on the federal habeas remedy to create hydraulic pressure on State PCR. Federal institutions have responded with “interventions” designed specifically to reinforce State PCR’s burgeoning enforcement portfolio. My objectives in this Article are to model the effect of structural change on state postconviction remedies, to make sense of and evaluate the responsive federal intervention, and by extension to understand the role that State PCR will play in modern criminal process.

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© 2017 Lee Kovarsky. Individuals and nonprofit institutions may reproduce and distribute copies of this Article in any format at or below cost, for educational purposes, so long as each copy identifies the authors, provides a citation to the Notre Dame Law Review, and includes this provision in the copyright notice.

*Professor of Law, University of Maryland School of Law. For their insightful comments, I thank John Blevins, Zack Bray, Adam Gershowitz, Brandon Garrett, Nancy King, Leah Litman, and Eve Primus. I am also grateful for the opportunity to participate in the University of Maryland Legal Theory Workshop. Finally, I appreciate the excellent research assistance of Reagan Greenberg and Emily Levy. All errors are my own.

1 See Vicki C. Jackson, Constitutional Law in an Age of Proportionality, 124 Yale L.J. 3094, 3107–08 (2015) (discussing the influence of Magna Carta and the English Bill of Rights on early American legal artifacts); Amanda L. Tyler, The Forgotten Core Meaning of the Suspension Clause, 125 Harv. L. Rev. 901, 927 (2012) (explaining the influence of Blackstone and Coke on founding-era understanding of habeas corpus).

2 Coleman v. Thompson, 501 U.S. 722, 752 (1991).

3 See Pennsylvania v. Finley, 481 U.S. 551, 557 (1987); see also Dist. Attorney’s Office v. Osborne, 557 U.S. 52, 69 (2009) (citing Finley for the proposition that the constraints on states providing postconviction relief are relaxed because they do not have to provide it);
Lackawanna Cty. Dist. Attorney v. Coss, 532 U.S. 394, 402 (2001) (explaining that there is “no constitutional mandate” that states provide State PCR).

4 I do not mean to suggest that nobody has paid attention to State PCR at all. There is, for example, a recent treatise on state postconviction remedies. See Donald E. Wilkes, State Postconviction Remedies and Relief Handbook (2013). Particularly after the Supreme Court decided Finley, more law review articles began to treat State PCR as a meaningful object of study. See, e.g., Eric M. Freedman, Giarratano Is a Scarecrow: The Right to Counsel in State Capital Postconviction Proceedings, 91 Cornell L. Rev. 1079, 1080–81 (2006) (disputing relevance of Supreme Court decision refusing a right to counsel in capital State PCR cases); Mary C. Hutton, Retroactivity in the States: The Impact of Teague v. Lane on State Postconviction Remedies, 44 Ala. L. Rev. 421, 424 (1993) (exploring how State PCR ought to give effect to new Supreme Court rules). In the last several years, however, some scholars have begun to devote more attention to State PCR. See, e.g., Eric M. Freedman, State Post-Conviction Remedies in the Next Fifteen Years: How Synergy Between the State and Federal Governments Can Improve the Criminal Justice System Nationally, 24 Fed. Sent’g Rep. 298, 298 (2012) (arguing that several factors give state and federal governments a shared interest in procedurally sound State PCR); Nancy J. King, Enforcing Effective Assistance After Martinez, 122 Yale L.J. 2428, 2451–55 (2013) (considering how recent Supreme Court decisions about the availability of federal habeas relief will affect state postconviction remedies); Justin F. Marceau, Challenging the Habeas Process Rather than the Result, 69 Wash. & Lee L. Rev. 85 (2012) (considering how 28 U.S.C. § 2254(d) and 42 U.S.C. § 1983 ought to be used to target serious defects in State PCR).