Eve Brensike Primus posted her recent, interesting article, “A Structural Vision of Habeas Corpus” (98 California Law Review (2009-2010)) on SSRN. Here’s the abstract.
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For decades, scholars and judges have assumed that federal habeas corpus review of state court criminal convictions should focus on the individual rights of habeas petitioners and that the federal courts should ask whether a state prisoner is being unlawfully detained because the state violated his individual federal rights. This individualized approach to federal habeas review is expensive, time-consuming, and woefully ineffective in stopping states from violating defendants’ federal rights. Indeed, many states systematically violate criminal defendants’ federal rights with impunity. This Article proposes a new conception of federal habeas review under which the federal courts focus on states, not on individual petitioners. Federal habeas relief should be available when, but only when, a state routinely violates its criminal defendants’ federal rights as part of a systemic practice. Reconfiguring federal habeas corpus review to focus on states and systemic practices would reduce redundancy, increase efficiency, and be more respectful of state institutions while, at the same time, recovering one of the original and now lost purposes of federal habeas corpus review.
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To download the paper for free, click here. For a sample of related Situationist posts, see “The Legal Situation of the Underclass,” “The Situation of Criminality – Abstract,” “Clarence Darrow on the Situation of Crime and Criminals,” “Why Criminals Obey the Law – Abstract,” and “Tom Tyler on “Strategies of Social Control” – Video.”