Habeas and Sentencing

For those who haven't yet discovered the exciting world of habeas, here is a brief intro:

The quintessential example of a claim within the core of habeas is a challenge to the validity of the prisoner‟s conviction or sentence, that is, a claim that the police, the prosecutor, the defense lawyer, the jury, or the court made a constitutional error resulting in an unlawful conviction or sentence.
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A prisoner challenging the conditions of confinement, on the other hand, is permitted to bring suit under § 1983.

At this link is an article in which a whole new world of habeas seems to have been rediscovered. In which the Preiser doctrine is turned on its head for good reason. I'm also stunned to see how clearly the authors show that federal judges get it wrong, (on at least two occasions) at pp 18-19. Demonstrating splits in the circuits here is also helpful.

The recommendation splitting sentence admin claims from other categories makes much sense; federal courts are likely to find it very helpful. That further deference is suggested for reviewing state court decisions where state judicial review avails is problematic. The problem of reviewing parole and disciplinary cases remains a daunting, growing, task. Deference only gives state reviewing courts the first opportunity to ignore (sweep under carpet) the valid federal claim. Having said this, AEDPA and PLRA are both legislative mistakes making it only easier to ignore valid claims. The consequences of this will continue to be evident as the prison population grows by leaps and bounds, as a toll on those unfortunate enough to be swept into the dragnet, their families, friends and acquaintances. Policies making it easier to convict and harder to undo wrongful convictions should be viewed with very critical eyes.

I hope after Doc Berman has a read on it he'll post his take. Following is a snippet from the paper by NANCY J. KING Vanderbilt University School of Law and SUZANNA SHERRY Vanderbilt University Law School :

Before 1972, it was not clear whether sentence-administration decisions by state corrections and parole officials were subject to constitutional regulation at all. In that year, the Court held in Morrissey v. Brewer that a parolee does have a liberty interest in his continued release on parole, which cannot be revoked without due process.5 In 1974, in Wolff v. McDonnell,6 the Court extended Morrissey to decisions that deprive d inmates of good-time credits and thus delayed the date of presumptive release. Five years later in Greenholtz v. Inmates of Nebraska Penal and Correctional Complex,7 the Court recognized a liberty interest in the denial or delay of parole, if the state parole system created an entitlement to a parole hearing after a set amount of time served. In particular, the Court held in Greenholtz that a state‟s decision to deny parole must meet minimum due process standards.8 These cases made it possible for state prisoners to raise constitutional challenges to sentence-administration decisions that had previously been unregulated by federal law.

Here are several of the more controversial statements, with which I tend to agree wholeheartedly, to be viewed critically by a trained eye:

The Court‟s expansion of the liberty interests of prisoners, the shift away from discretionary to
mandatory release laws, and the early decisions in Preiser and Wolff were not the only developments that contributed to an increase in the number of prisoners seeking habeas relief for sentence-administration claims over the past thirty years.

Once Edwards was combined with the changes in sentencing and release law described above, it ultimately channeled many sentence-administration challenges into habeas. But there was yet another development, almost simultaneous to the doctrinal change worked by Edwards, which has turned an unfortunate situation into an intolerable one.

in the years leading up to passage of the Act there is no sign in the legislative history that lawmakers anticipated the application of the new provisions to attacks by non-capital state prisoners on administrative decisions that affected the timing of their release from prison.

In general, the law recognizes (1) that similar claims by state and federal prisoners are treated similarly in terms of access to judicial review; (2) that federal courts are more reluctant to interfere with the judgments of state courts than with the actions of other, non-judicial state actors; and (3) that deprivations of physical liberty are the most egregious invasions of liberty.

Wilkinson further complicates the problem, because almost every case can be described both as satisfying and as not satisfying the Wilkinson standard: If the prisoner wins his procedural challenge, it means both that the first hearing was constitutionally invalid (and thus that the result of the hearing was invalid) and that the plaintiff is entitled to a new, constitutionally adequate, hearing.90

when states choose not to authorize judicial review, federal
oversight of the decisions made by their prison and parole officials will be more
exacting than it would have been had the state provided judicial review.

UPDATE: this SSRN piece is still in draft stage.