Habeas Corpus and the Right to Effective Assistance of Counsel

My new article on habeas corpus and the right to effective assistance of counsel is now out: Bypassing Habeas: The Right to Effective Assistance Requires Earlier Supreme Court Intervention in Cases of Attorney Incompetence, 25 Fed. Sent. Rep. 110 (2012).  Here is the abstract:

This article considers the interplay between habeas corpus law and the Sixth Amendment right to effective assistance of counsel. Certain peculiarities of federal habeas have given a schizophrenic character to recent Supreme Court decisions on ineffective assistance. At the same time that the Court has displayed a new willingness to extend Sixth Amendment protections to the plea-bargaining arena, the Court has also evinced a particular hostility to ineffective assistance claims arising in habeas. The present article identifies the roots of this schizophrenia in the Court’s 2000 decision in Williams v. Taylor. The Court’s trajectory from Williams to the present suggests that, absent a significant ideological makeover, the Court is unlikely in habeas cases to bring greater vigor and clarity to the right to effective assistance. The Court and advocates pushing the Court to adopt stronger Sixth Amendment protections should thus focus their efforts on cases emerging directly from state-court systems, rather than on collateral post-conviction challenges in federal court.

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New Report Offers More Complete Calculation of Costs of Imprisonment

How much does imprisonment cost a state’s taxpayers? The question is conventionally answered simply by looking at the budget of the state’s department of corrections. In some states, however, a substantial share of the imprisonment-related expenses are borne by other state agencies or otherwise do not appear in the corrections department’s budget. In order to provide a more complete accounting of the costs of imprisonment, researchers from the Vera Institute of Justice recently collected and analyzed data from forty states (including Wisconsin). Their findings were published in the Federal Sentencing Reporter at 25 Fed. Sent. Rep. 68 (2012).

The Vera researchers, Christian Henrichson and Ruth Delaney, identified eleven categories of costs that are not included in corrections budgets. The most important of these, amounting to almost $2 billion in costs nationally in 2010, took the form of gaps in the funding of health benefits for retired corrections employees. In some states, this and other off-the-budget costs added up to a large share of total prison costs. For instance, in both Connecticut and Illinois, about one-third of the total prison cost was outside the corrections budget. When hidden expenses are so high, the public may have a hard time evaluating the true cost-effectiveness of state sentencing and corrections policies.

Wisconsin’s hidden costs, at 8.5 percent of the total, were somewhat below the average among the forty states studied.

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