Habeas and the “Flood” of Lawsuits
Jason Kuznicki on Jun 19th 2008
Lately I’ve been hearing a very weird and ill-considered argument, and as far as I can tell it always goes unchallenged. I thought I’d put some numbers to it, and when I did, I found that the argument got even weirder.
Marc Ambinder (quoted by Publius at Obsidian Wings) states it as follows:
[McCain’s] concern now [] is procedural, rather than constitutional: the detainees’ having access to habeas in our federal courts would create a tangled web of lawsuits, would expose intelligence secrets, and would needlessly draw out these legal proceedings.
Exposing intelligence secrets is obviously a valid concern, and one for which legislation can surely be crafted. But the flood of lawsuits is a total phantom.
There are now 2.2 million prisoners in our criminal justice system. Every single one of them may file a federal habeas petition whenever he pleases. The rest of us may also file habeas petitions on their behalf, again whenever we please.
This does not mean that the writ will always issue, or that a judicial hearing will necessarily result. It just means that you may ask for the writ, and if the judge agrees, he may issue one. If the judge thinks your petition is groundless, he is free to deny it — but at least you can ask. This is true of all 2.2 million prisoners, and of all 300 million or so free Americans.
Now come 355 detainees who would like the same right. “Oh no,” say the conservatives. “We’d be faced with a flood of lawsuits.”
Give me a break.
For roughly 2.2 million prisoners, there were collectively filed about 19,200 federal habeas petitions in 2004. Let’s assume that the Gitmo detainees — who often don’t even speak English — were to file at the same rate as ordinary prisoners. That would mean about three more petitions per year, a staggering .016% increase.
But let’s assume that these prisoners are extraordinarily motivated, which they may well be. We’ll assume that each of them files one petition, and that an outside agent files one for each of them as well. Assuming that none of these petitions were combined — which is highly unlikely — we would see a 3.6% increase in the total number of federal habeas petitions to review.
And how successful is a typical petition? According to the Department of Justice, 98% of federal habeas petitions are dismissed or denied on the merits, while only 2% result in new trial proceedings. (In death penalty cases, the rate can reach up to 40%, although none of the Gitmo detainees are facing death sentences as of this writing.)
Take our hypothetical group of highly motivated detainees, who were also — hypothetically — very lucky in their selection of habeas causes, such that there are no duplicate or combined petitions. This cohort now has 710 petitions pending before federal judges. From these, we may expect perhaps 14 new trials. Or, if writs end up issuing more like they do in death penalty cases, there will be 284 new trials (assuming that the non-combined habeas petitions are distributed such that only one of them is ever granted per prisoner — again, a highly favorable assumption).
Now consider that there were 69,575 total federal criminal cases filed in 2005. Even granting the most absurdly favorable assumptions imaginable, Gitmo habeas hearings will cause the federal caseload to go up by .4%.
Of course, if the detainees turn out to be more like ordinary U.S. prisoners in their habeas statistics, we may expect one additional trial about every twenty years or so. God forbid that Gitmo stays open that long, but — like I said — this just shows that the “flood” of lawsuits is an ill-considered and very strange reason to deny anyone the right to petition for habeas corpus.
(Yes, 2.2 million prisoners is a shameful statistic all by itself. For the reasons behind it, see this graph.)
Filed in The Barracks
It astounds me how stupid the Right can be about such things. Even if the increase in habeas/actual cases *was* a significant amount, who the hell cares? I cannot fathom the mentality that ensuring justice is a waste of time.
Didn’t the Republicans cheer when Goldwater said “Extremism in the defense of liberty is no vice, and moderation in the pursuit of justice is no virtue”?
I’ve had this discussion with my father so many times - he’s been a Republican all his life. He won’t abandon the party even though it’s abandoned him. I *hate* the two-party system.
Given the length of time these prisoners have been held, they have a much clearer case for a habeas suit than the average prisoner, so more of their petitions may go to trial.
Is that what the conservative commentators are afraid of — that these are valid claims, and so it might be necessary to act on them?
Nice graph you link to, and it makes a good point. For accuracy, though, it should show incarcertations per capita.
Nitpicky point of style, offered in good humor, feel free to ignore: Do you really feel obligated to italicize “habeas” as a foreign term every time it appears? Cause every time I read it throughout this post I’m pausing and “pronouncing” it differently in my head as if you were using the italics for emphasis. Yeah, obviously, it is Latin, but given its extremely common usage in our legal system, it’s really not exotic, I just don’t really see the point, especially when you’re using the term that many times in a post.
A question about the graph you linked to? The arrow says “1971 Richard Nixon declares war on drugs” but it looks to me as if the increase in the 1970’s was at the same rate as in the 1950’s then there is an more rapid change from about 1980, so which is it. Am I reading the graph wrong, did the effect of the war on drugs take a decade to impact prison numbers or did something change in 1980?
Just to be clear I believe that prohibition is both immoral in its restriction of personal liberties and counterproductive in putting drug sales into the hands of violent gangs. I’m just curious about the timing, and yes I know Reagan was elected in 1980 but if that is part of the answer what did he do that was different enough to explain the increase.
From 1980-1990, the Reagan and Bush administrations urged considerably harsher drug laws. Although the Controlled Substances Act was enacted in 1970, penalties were made considerably harsher in 1984, and additional measures came throughout the 1980s with the effect of swelling the prison population. Personally I blame both Nixon and Reagan, but also the political system in general and many other figures besides.