State Criminal Proceedings Research Articles

Direct Collateral Review

Federal courts are vitally important fora in which to remedy constitutional violations that occur during state criminal proceedings. But critics have long lamented the difficultly of obtaining federal review of these violations. The Supreme Court rarely grants certiorari to review state criminal convictions, including allegations of constitutional defects, on direct appeal. Likewise, the Court has historically declined to grant certiorari to review habeas claims that originate in state courts. And Congress has circumscribed the ability of all federal courts to grant relief on habeas claims made by state prisoners. The dominant scholarly view, therefore, is that systemic constitutional violations are going unremedied and will continue to go unaddressed absent broadscale change. This Essay argues that an unnoticed change in the Supreme Court’s certiorari practice over the last five years has reopened a previously closed path to remedying these violations. The Supreme Court has a long-stated presumption against taking cases that originate in state collateral proceedings, i.e., state proceedings in which a prisoner challenges his or her conviction or sentence, often on federal constitutional grounds, after the conviction has become final. This Essay shows that, although the Court previously hewed to that presumption, things have changed. Beginning in October Term 2015 and continuing to the present, the Court has steadily granted certiorari in these cases, indicating a sub silentio abrogation of its stated presumption. This Essay documents this changed certiorari practice and explains its significance, both for vindication of constitutional criminal procedure rights and for our understanding of the Supreme Court’s central role in shaping those rights.

Civil Rights and the Making of the Modern American State. By Megan Ming Francis. New York: Cambridge University Press, 2014. 197 pp., $27.99 paper.

Civil Rights and the Making of the Modern American State. By Megan Ming Francis. New York: Cambridge University Press, 2014. 197 pp., $27.99 paper.Megan Ming Francis' new book, Civil Rights and the Making of the Modern American State, tells the story of how the early anti-lynching crusade of the National Association for the Advancement of Colored People (NAACP) shaped the modern civil rights movement. The book is crisply written, well-documented, and powerfully argued. It should be read by anyone interested in the history of civil rights in the United States as well as American Political Development (APD), institutional choice, and social movements. The book represents a key contribution to a growing trend that seeks to understand the micro-foundations of the evolution of the American state and federal policy, which offers a decentered account of institutional development in American politics and underscores the role of groups in creating opportunities for change from the bottom-up.At its core, Francis' book is a fascinating political history that seeks to fill a gap in our understanding of the civil rights movement in the United States. Whereas most accounts begin with the story of school desegregation, Francis starts with the founding of the NAACP and its fight against lynching. By pushing the time-line back, Francis brings to light the importance of the NAACP's victory in Moore v. Dempsey (1923), the historic Supreme Court decision that marked the first federal intervention into state crim-inal court proceedings. Francis shows how this initial victory influenced subsequent NAACP campaigns, including its securing of funding that led to the establishment of the Legal Defense Fund, which fueled the fight to desegregate schools. In the process, Francis ties the struggle over civil rights to campaigns against political violence and a profoundly unjust criminal justice system-issues that are still at the core of the ongoing fight for racial equality.It would be a mistake, however, to think of Francis' book as a gap-filling exercise. The heart of the analysis grapples with longstanding debates over the role of structure and agency in politics and social change. Francis argues that the existing literature tends to focus narrowly on the structural aspects of the story, describing the shifting opportunity structure of American politics in the shadow of Cold War imperatives. Francis directly challenges this view, arguing that [t]he problem with these top-down accounts of political change is that they privilege institutions over citizen agency and thus understate the role of civil society and different forms of civic (p. 15). The critical point is that, even if we accept the importance of institutions and the ever-shifting opportunity structure in American politics-and Francis is careful to acknowledge these factors-these opportunities are not self-executing, actors must seize these opportunities and decide how to exploit them. Francis takes us into that process, revealing its contingency and historical context. What emerges is a reclaiming of agency in the process of change, even in a case where the institutional opportunities for change were highly constrained.Stepping further back, Francis' work is part of a broader movement in APD literature that seeks to explore the grassroots foundations of the development of the state and federal policy. Other works along these lines include Charles Epp's Making Rights Real (2009), which details the creation of coalitions between activists and professionals that gave rise to new modes of governance at the local level, and Douglas Reed's The Building of the Federal Schoolhouse (2014), which identifies the ways in which local groups and urban politics has shaped (and been shaped by) decades of federal school policy. Anyone interested in APD must heed the call of these works to explore how group and individual level activity and local politics influence the state and federal policy development. …

Federal Courts as Monitors: Irreparable Injury in State Courts

The conventional wisdom is that state and federal courts are equally competent in their ability to decide federal constitutional claims. Indeed, this presumption is essential to Younger v. Harris, in which the Supreme Court held that federal courts may not enjoin state criminal proceedings in the absence of exception circumstances warranting federal relief. Central to this holding is the idea that state courts are as able as federal courts to decide constitutional claims; otherwise, forcing state criminal defendants to present their constitutional claims as defenses would not constitute an adequate remedy at law. Yet the fact that the Court in Younger recognized that there could some set of circumstances that would require federal intervention into state criminal proceedings, as well as lower courts’ use of these exceptions, demonstrates how the federal courts themselves view parity. If federal courts must sometimes interfere with state proceedings, then there must be some federal constitutional issues that the state courts are presumed unable to handle. In these situations, the state and federal courts are not in parity.

The Constitutional Authority of the Federal Government in State Criminal Proceedings that Involve U.S. Treaty Obligations or Affect U.S. Foreign Relations

The Constitutional Authority of the Federal Government in State Criminal Proceedings that Involve U.S. Treaty Obligations or Affect U.S. Foreign Relations

The Demise of an “Extraordinary Criminal Procedure”: Klopfer v. North Carolina and the Incorporation of the Sixth Amendment’s Speedy Trial Provision

The Demise of an “Extraordinary Criminal Procedure”: Klopfer v. North Carolina and the Incorporation of the Sixth Amendment’s Speedy Trial Provision Joseph Mosnier* Editor’s Note: This article is the winner ofthe 1996 Hughes-GossettAwardfor best studentpaper. The circumstances ofPeter H. Klopfer’s arrest fortrespassing during a civil rights demonstration in January 1964 were scarcely unique, given the times. Klopfer, a thirty-three-year-old assistant professor of zoology at Duke University and a Quaker who made no secret of his support for racial integration, was detained along with five other professors and several younger persons after a protest at a segregated restaurant in Chapel Hill, North Carolina. Duringthe priormonth more than 100 students, many from local high schools but the majority from the University of North Carolina, the institution around which the small town of 1,500 had grown, had been arrested during a string ofsimilar demonstrations targeting other segregated businesses in Chapel Hill. The number of student arrestees soon climbed to more than 200 as protests continued into February. True, the incident involving Klopfer and the other professors marked the sole occasion on which faculty would contribute their status and prestige to the movement by submitting to arrest. But the charge they faced was simple misdemeanor trespass. In this respect the Klopfer case differed not at all from hundreds ofothers arising in Chapel Hill and in the South in those months and years. Klopfer had no reason to think that the ultimate legal disposition ofhis case would be more than a matter oflocal interest. Peter Klopfer’s case soon stood apart from all ofthe others, however. ByApril 1964 authorities had concluded court proceedings against the several hundred Chapel Hill demonstrators. All except Klopfer were convicted, faculty members individually and the others after a joint plea bargain arrangement. Tried in March, Klopfer escaped conviction when his jury deadlocked, forcing thejudge to declare a mistrial. The local prosecutor did not retry Klopferbut chose instead, after putting the case offfor eighteen months, to utilize a procedural device known as the “nolle prosequi with leave” (in legal parlance, the “nol pros with leave”). The nol pros with leave caused the outstanding indictment to remain pending indefinitely unless and until the prosecutor, at his discretion, called the case for retrial at some future date. With the statute of limitations suspended by the nol pros, Klopfer thus faced the prospect of an unliquidated criminal charge forever hanging over his head. JOURNAL 1996, VOL. 2 137 Not surprisingly, Klopfer wanted no part of this. Moreover, he believed that two related developments at the federal level in the year and one halfthat passed between the mistrial and the entry of the nol pros with leave eliminated any chance for the prosecutor to proceed successfully against him. The passage in July of the Civil Rights Act of 1964 and the Supreme Court’s subsequent validation of the Act’s public accommodation provisions convinced Klopfer of the unsustainability of prosecutions of persons seeking service at places of public accommodation. Yet Klopfer could not compel the local prosecutor, who enjoyed sole discretion in the case, to try him. After a long period of stalemate, Klopfer carried an appeal to the North Carolina Supreme Court. He argued that the application ofthe nol pros with leave denied him a speedy trial, but the seven justices were unimpressed and unanimously sustained the disposition of his case. Unsatisfied, Klopfer appealed for reliefto the Supreme Court of the United States. Although the Supreme Court had never held the Sixth Amendment’s speedy trial provision binding upon the states, Klopfer pinned his hopes on the Warren Court’s demonstrated willingness to expand the range of constitutional protections available to criminal defendants at the state level. To accomplish this reform of state criminal proceedings, which ranked among the Warren Court’s most ambitious undertakings, the Court since 1961 had incrementally broadened its interpretation of the Due Process Clause of the FourteenthAmendment, which explicitly enforced obligations upon the states. By the mid-1960s the Warren Court newly construed the Due Process Clause to encompass certain ofthe major criminal procedure guarantees ofthe Bill ofRights, and Klopfer reasoned that the Court ought now to add the Sixth Amendment...

Justice Potter Stewart: The Unpredictable Vote

Justice Potter Stewart: The Unpredictable Vote Gayle Binion At the time of his appointment to the United States Supreme Court in 1958,’ Potter Stewart was asked to describe hisjudicial philosophy. He responded, “I like to be thought ofas a lawyer.”2 In a personal interview, eighteen years later, he reiterated this preference.3 When he announced his retirement in 1981, he told reporters he hoped he would be remembered “as a good lawyer who did his best.” Stewart was especially concerned he not be labeled as either a liberal or a conserva­ tive, labels readily attached to the Justices with whom he served.4 To Stewart, those labels sug­ gested a Justice who acted upon his own ecoPotter Stewart relaxing at home. Stewart served as an Associate Justice from 1958-1981. He strived to be remembered “as a good lawyer who did his best” throughout his career. nomic, political, social, or religious values. In contrast, his Justice-as-lawyer role model sug­ gested for him ajurist capable ofapplying objec­ tive legal reasoning to questions before the Court, uninfluenced by his own values. Although Stew­ art was fully aware of the enormous social, eco­ nomic and political consequences which Court de­ cisionsmayhave,hecontinuedtobelieve one could, nevertheless, set aside one’s own philosophical values as bases for decision making.5 It appears, even at the close ofhis career on the Court, Stewart had succeeded in eluding the pigeon-holers.6 The most commonly used terms to describe Stewart: “moderate,”7 “neutral,”8 and“swingvoter,”9 reflect his tendency to vote “liberal” in some cases and “conservative” in others, and his propensity to defy prediction in specific cases. Constitutional scholars, often frustratedin theirattemptto pinpoint Stewart’s ideology,havetendedto ignorehisroleon the Court,haveassumedhis positionsweretheresult ofinconsistent or random decision making, or have attempted to assess his votes along an ideological continuum as definedby allianceswithbrethren.10 Careful analysis of Stewart’s decisions, however, reveals therewere significantpredictors ofhis posi­ tions on the controversial issues ofhis day, but they were not necessarily inherent in thesubstance of the legalquestionsbeforetheCourt. Primaryamong his values, and explanatory ofmany ofhis allegedly unpredictable votes, were his fervent commitment to states’ rights and an equally strong commitment to narrow, non-anticipatory decision making. It is thislatterorientationwhichcontributestohislawyerly self-image, but it is the former which rationalizes 100 JOURNAL 1992 many ofhis otherwise incomprehensible decisions. States’ Rights Federalism The most significantelement in Stewart’sjuris­ prudence was his commitment to states’ rights. To most students ofconstitutional law, states’ rights is a relic of our darkest past, a constitutionalism that supported slavery, corporate oligopoly, and the in­ ability ofthe federal governmentto deal with twen­ tieth-centuryproblems. The ideologyofdual feder­ alism, under which the Tenth Amendment stood as a positive restriction on national authority, was laid to rest in U.S. v. Darby Lumber" in 1941, when Justice Harlan Stone proclaimed “the [Tenth] Amendment states but a truism that all is retained [bythe states] whichhas notbeen surrendered.” But Stewart, in contrast with the predominant legal thought ofour age, and with the Supreme Court on which he served, maintained a commitmentto dual federalism, to the belief that states continued to retainsubstantial constitutionalautonomy. Dissent­ ing alone in Perez v. U.S.12 in 1971, he concluded Justice Stewart dissented in Perez v. United States (1971), arguing that loan-sharking was only a local practice. Frank Tieri, above, is shown after his arrest by the FBI in New York on federal loan­ sharking charges. that loan-sharking was only a local business prac­ tice, and, therefore, despite its occurrence nation­ wide, not subject to congressional regulation. His Tenth Amendment reasoning was reminiscent of ideas largely abandoned by the Court duringthe era of Franklin D. Roosevelt. Stewart also dissented againstguaranteeingto defendants in state criminal proceedings the pro­ tections contained in the Bill of Rights.13 He viewed the imposition ofthese restrictions on the states as an interference with their conduct oftheir criminaljustice systems. Because the operation of a criminaljustice system was, for Stewart, an essen­ tialfunctionofgovemment, largely definitionalof a sovereign state, he was extremely unlikely to favor abridging the autonomy ofthe states in this area. His votes in Malloy v. Hogan" Benton v. Maryland," and Duncan v. Louisiana" against the “incorporation” of, respectively, the...

The Burger Court and Younger Abstention: Enhancing the Role of State Courts in Constitutional Adjudication

An important determinant of federal balance is the degree of state court authority to decide federal constitutional issues. This study traces the development of the Younger abstention doctrine, one of the primary vehicles by which the Burger Court restricted federal court jurisdiction and enhanced the authority of state courts in constitutional adjudication. The Younger doctrine was adopted by the Supreme Court in 1971 for reasons of comity and equitable restraint. Throughout the Burger Court years, Younger was expanded from an initial denial of jurisdiction to litigants seeking injunctive relief in state criminal proceedings, to litigants in cases “akin” to criminal proceedings, and then to litigants in cases “important to state interests.” By relying on Younger abstention, the Burger Court has reduced the role of the federal courts as the primary enforcement of U.S. constitutional rights.

Fourteenth Amendment. Due Process and an Indigent's Right to Court-Appointed Psychiatric Assistance in State Criminal Proceedings

Fourteenth Amendment. Due Process and an Indigent's Right to Court-Appointed Psychiatric Assistance in State Criminal Proceedings

Stone v. powell: The future of criminal appeals

Predicting the future for governmental entities is difficult; however, given the incrmental nature of change in the courts, “enlightened” guesses can often be made. This manuscript examines the Burger Court’s move toeard disengagement from actively supervising state criminal proceedings and the impact this change in philosophy will have on the criminal appellate process.

Federal Courts. Procedure. Denial of Temporary Restraining Order Is Appealable as a Final Decision Where Delay Would Render Appeal Ineffectual; Powers. United States under Civil Rights Act May Obtain Temporary Order Restraining State Criminal Proceedings. United States v. Wood (5th Cir. 1961)

Federal Courts. Procedure. Denial of Temporary Restraining Order Is Appealable as a Final Decision Where Delay Would Render Appeal Ineffectual; Powers. United States under Civil Rights Act May Obtain Temporary Order Restraining State Criminal Proceedings. United States v. Wood (5th Cir. 1961)

Courts: Federal Court Injunctions against State Criminal Proceedings: Civil Rights Act of 1957

Courts: Federal Court Injunctions against State Criminal Proceedings: Civil Rights Act of 1957

Constitutional Law: Due Process: Privilege against Self-Incrimination in State Criminal Proceedings

Constitutional Law: Due Process: Privilege against Self-Incrimination in State Criminal Proceedings

The Fourteenth Amendment and State Criminal Proceedings--Ordered Liberty or Just Deserts

The Fourteenth Amendment and State Criminal Proceedings--Ordered Liberty or Just Deserts

The Fourteenth Amendment and State Criminal Proceedings. "Ordered Liberty" or "Just Deserts"

The Fourteenth Amendment and State Criminal Proceedings. "Ordered Liberty" or "Just Deserts"

Constitutional Law: Due Process: Admissibility in State Criminal Proceedings of Evidence Obtained by Force from Those in Custody

Constitutional Law: Due Process: Admissibility in State Criminal Proceedings of Evidence Obtained by Force from Those in Custody

Federal Injunctions against State Criminal Proceedings

Federal Injunctions against State Criminal Proceedings

Power of Federal Courts to Stay State Criminal Proceedings

Power of Federal Courts to Stay State Criminal Proceedings

Constitutional Law: Due Process: Federal Restrictions on the Use of Confessions in State Criminal Proceedings

Constitutional Law: Due Process: Federal Restrictions on the Use of Confessions in State Criminal Proceedings