Lawyers are no good at it. Even SCOTUS Justices like Scalia are no good at it.
Following up on our previous post here at Lawyers on Strike, go ahead and read the last paragraph in Nino’s dissent in the very recent McQuiggin v. Perkins. No wait, I’ll just quote it here:
The “inundation” that Justice Jackson lamented in 1953 “consisted of 541” federal habeas petitions filed by state prisoners. Friendly, Is Innocence Irrelevant? Collateral Attack on Criminal Judgments, 38 U. Chi. L. Rev. 142, 143 (1970). By 1969, that number had grown to 7,359. Ibid. In the year ending on September 30, 2012, 15,929 such petitions were filed. Administrative Office of the United States Courts, Judicial Business of the United States Courts 3 (Sept. 30, 2012) (Table C-2). Today’s decision piles yet more dead weight onto a postconviction habeas system already creaking at its rusted joints.
A little perspective, please. In 1953 the prison population of the United States was about 250,000. In recent years it has apparently maxed out at about 2.5 million.
As we’ve noted before, the true upper limit of our ability to imprison our fellow citizens and human beings is established by budgets, not concerns about whether we might be doing anything wrong, raising the disturbing specter of increasingly indiscriminate incarceration. Since even Justice Rehnquist, no friend of criminal defendants, has said:
After all, the central purpose of any system of criminal justice is to convict the guilty and free the innocent. See UnitedStates v. Nobles, 422 U.S. 225, 230 (1975).
it would seem that any evidence of indiscriminate incarceration – such as Brown v. Plata – would be troubling to judges, especially SCOTUS justices, who are supposed to bear some sort of overall responsibility for
this mess the criminal justice system in the United States.
So with all that in mind, let’s take a slightly critical look at Nino’s little foray in arithmetic to see whether the superficial force of his argument bears up under any scrutiny at all. The 1953 figure of 541 federal habeas petitions divided into the country’s then-prison-population of 250,000 indicates that two tenths of one percent of those prisoners filed federal habeas corpus petitions. The 2012 figure Nino cites of 15,929 equates to six tenths of one percent of the overall prison population of 2.5 million.
Can an increase from 2/10 of 1% to 6/10 of 1% accurately be described as “inundation” and a “flood”? Admittedly, it’s a three-fold increase – from infinitesimal to miniscule might be one way of putting it.
Moreover, as recently as 2011 – the very previous year – Nino’s 15,929 number could have been 17,000. As recently as 2006 the number would have been closer to 20,000.
In other words, the number of federal habeas petitions filed by state prisoners has been precipitously declining of late.
The real story is that we’re imprisoning too many people because the courts have largely abdicated their responsibility to accurately determine guilt or innocence. As the proportion of innocent people locked up has therefore increased as a result, so have the efforts of those people to free themselves, including federal habeas corpus. This should hardly be surprising, the increase could hardly be described as a “flood”, especially given the severity of the problem, and to the extent we have more of these federal habeas petitions than we should that’s a reflection of the dismal performance of our state criminal justice systems, as recently and prominently exemplified in Arizona by the Jodi Arias trial.
The real flood, as the linked chart and every other statistical measure show, has been in criminal convictions and incarceration, a 10 fold increase in the same time-frame as Nino’s numbers. If you’re willing to tolerate that with few questions and little more than pat and heavily ideological answers to the questions you actually do bother to ask, you could also and probably more fairly ask if the “creaking at rusted joints” you’re hearing originates in your head.