Document Type

Article

Publication Date

1-2010

Abstract

As scholars have recognized elsewhere in public law, there is no hermetic separation between individual rights and structural or systemic processes of governance. To be sure, it is often helpful to focus on a question as primarily implicating one or the other of those categories. But a full appreciation of a structural rule includes an understanding of its relationship to individuals, and individual rights can both derive from and help shape larger systemic practices. The separation of powers principle, for example, is clearly a matter of structure, but much of its virtue rests on its promise to help protect the rights and welfare of individuals. 19 Conversely, the right to vote belongs to individuals, but one of its most important functions is to prevent the systemic distortion of political power. The law assigns the individual voter a right partly to vindicate his individual interests, but the assertion of that right is also meant to prevent the more general abuses that might follow if whole groups of voters were excluded from the political process.20 This Article proposes that federal habeas could be profitably reimagined along parallel lines, with the rights of individual petitioners functioning as levers for prompting systemic criminal justice reforms. In so doing, the Article departs from a long tradition of understanding habeas review as a straightforward matter of individual rights, the aim of which is to remedy legal violations that occur in particular petitioners' cases. This individualist orientation dominates existing theories of habeas corpus, uniting those who would reform habeas by making it more broadly available with those who have proposed narrowing or streamlining reforms. In the former camp, scholars such as Larry Yackle21 and Gary Peller 22 have advocated eliminating many procedural barriers to federal habeas review.23 In the latter camp, Henry Friendly, 24 John Jeffries, and William Stuntz25 have recommended restricting habeas petitions that do not allege factual innocence; scholars building on Paul Bator's process theory26 have focused on whether individuals had a fair opportunity to raise their claims in state court;27 and still others have argued that federal habeas should be a forum for some constitutional criminal procedure claims (such as claims of judge or jury bias) but not for others (such as the unreasonableness of a police search).28 On all sides, the literature is large. But from each perspective, these scholars share the assumption that the point of federal review of state convictions should be to correct errors in individual cases. They only differ as to which errors they think are worth correcting-process errors, guilt-innocence errors, or errors affecting certain favored federal rights.

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