|All the King's Horses
and all the King's Men...
|In my article, "Politics
and Prisoners," I touched upon the subject of the case load of federal
judges being so burdensome as to Indicate that criminal defendants are
not receiving a full de novo review of Petitions for a Writ of Habeas Corpus.
That article was written for another entire purpose and my discussion of
this issue was cursory. In fact, while the preliminary numbers I had compiled
up to the date of that article had started showing a statistical impossibility
due to the limitations of the human mind, I had not completed extrapolating
those numbers at the time I wrote that article. I have now completed my
research and finished crunching the numbers involved. I can find no error
in my calculations, nor in the rather startling conclusions those numbers
lead me to assert below. It all comes down to this. The Judicial System
in the United States is not only bankrupt of human resources, but is deceiving
the American People, and I can prove It statistically.
I challenge any reader to check the numbers below and prove I am wrong. I admit to not wanting to believe what I am exposing here, and that what I have found confirms suspicions I have had for some time now, but did not have the means to prove.
Unless otherwise noted, the Tables and Statistics below appear in the Sourcebook Of Criminal Justice Statistics, 2000, published by the Department of Justice, Office of Justice Programs, Bureau of Justice Statistics, report number NCJ-190251.
In the year 2000 a total of 31,560 prisoner petitions challenging their convictions were filed in the 94 United States District Courts of the U.S.. The breakdown of those petitions is as follows:
6,341--Federal Prisoner 28 U.S.C. §2255 motions to vacate.
In the year 2000, 11,303 prisoners, both state and federal, filed appeals to a United States Court of Appeals from the District Court's decision denying their Motions to Vacate or Habeas petitions. The majority of those appeals were taken by the prisoner after losing the Petition, some were taken by the government after it lost the petition. (See, Table 5.63, p. 469). This is a total of 24.3% of all appeals filed in the United States Courts of Appeals in 2000. (Table 5.63, p. 469, showing a total of 46,487 cases filed in 2000).
For purposes of this article, I have decreased the percentage of habeas corpus appeals to 20%. This is because the number of Habeas Corpus petitions filed has been steadily increasing since the passing of the 1996 Anti- Terrorism and Effective Death Penalty Act. (AEDPA). The cases terminated in 2000 by the U.S. Courts of Appeals would have included a slightly lower number of Habeas petitions because the average litigation time-frame is around 2 years for a decision to be entered in the U.S. District Court that can be appealed, and around one year while the Court of Appeals decides the case. Remarkably, reducing the percentage of Habeas cases terminated in 2000 to 20%, from the 24.3% filed in 2000, made no difference in the overall numbers, because more cases were terminated than were filed in 2000 in U.S. Courts of Appeals.
Table 5.62, p. 468 states that 56,512 cases were terminated in the U.S. Courts of Appeals in the year 2000. The average percent of Habeas petitions filed from 1996 to 1999 is 20.37%. (Table 5.63, p. 469). Using the 20% reduced number that adjusts for the lower number of Habeas cases filed in 1996-99 still leaves 11,302 of those 56,512 terminated appeal cases as Habeas petitions or motions to vacate, only one number less than the total number of new Habeas appeals filed in the year 2000, which were:
2,671--Federal Prisoner 28 U.S.C. §2255 motions to vacate.
As shown by Table 5.61, p. 467, only 35.8% of all prisoners filed an appeal from the denial of their Petitions for a Writ of Habeas Corpus, Motions to Vacate, or were granted a Certificate of Appealability, as newly required by the 1996 AEDPA.
For purposes of calculating the numbers of pages of documents Involved In these cases below, I am going to use the 11,303 number of new appeals filed In the year 2000. The one case which Is the difference in the numbers between those cases filed In 2000, and those appeals terminated In 2000, is statistically Insignificant. Further, the numbers below do not Include the numbers of pages of the briefs filed In Objections to the Magistrate's R&R, or in the U.S. Courts of Appeals briefs. Those briefs alone exceed 1,300,000 pages of documents In 11,303 cases. I have left out those pages to create a built-in margin of error, and so as to not be accused of overstating the problem.
But even with me omitting over 1,300,000 pages from the following calculations, to account for cases such as guilty pleas which have fewer transcripts pages (and which are a small percentage of Habeas Corpus filings), the 11,303 Habeas appeals still evidence a serious problem exists of which the public is unaware. Also, before proceeding to the calculations, it is important I make certain you understand the Standard of Review required in these prisoner Habeas cases. Even those cases held procedurally defaulted at some level of the State court system, and the federal prisoner's petitions, require a review by the court for a manifest miscarriage of justice sufficient to overcome the procedural default. This review must be a "de novo" review of all the records of the case.
Table 5.62, p. 468 shows there are a total of 167 Judgeships that are authorized by Congress In the 11 United States Courts of Appeals (excluding the Federal Circuit Court not relevant to the Issue addressed), and that those Courts operate exclusively as 3-Judge Panels, for a total of 55 panels available on any one day to hear cases. All three judges on the panel must review any Habeas Corpus petition de novo. The phrase "de novo" means:
"De Novo. Anew; afresh; a second time."
The judges reviewing a State prisoner's Habeas Corpus, or a Federal prisoner's Motion to Vacate, are required to read every part of the record of the conviction. This includes the pretrial briefs, the pretrial hearing transcripts, the trial transcripts, the Appeal briefs, the Appeals Court decision, the State Supreme Court briefs and decision, the Habeas Corpus Petition, the Magistrate's Report and Recommendation, the Objections to the Magistrate's Report and Recommendation, the U.S. District Court Judge's Opinion and briefs and rulings on the Certificate of Appealability. Each judge on the panel of the Court of Appeals must review every page of the entire proceedings below their court, and render a decision, de novo, as if no other court has ever heard the issues raised and ruled upon them before.
Further, the Judge cannot delegate this to a law clerk. Every United States citizen is entitled to a de novo review of his or her case on Petition for Habeas Corpus by an Article III Judge-- i.e., a Judge appointed by the President of the United States, and approved by Congress, to sit for life upon a United States Court. This is mandated by Law.
There were 28,560 appeals filed in the United States Courts of Appeals in 1985. There were 46,487 appeals filed in 2000. (Table 5.63, p. 469). This is an Increase of 62.7% In the number of cases. Yet In the same time, the number of Judges has only Increased from 156 Judges to present day 167 Judges, or an Increase of 7% In the number of Judges sitting on the U.S. Courts of Appeals. (Table 5.62, p. 468).
If, as stated at Table 5.62, p. 468, there were 167 Judges, sitting
as 55 three-judge panels on any given day during the year 2000, and they
decided on and terminated a total of 56,512 appeals, then each panel averaged
a total of 1027 cases per year, or 4 (3.95), cases per day in a 260 day
working year. Further, 20%, or 11,303 of those cases, were prisoner's (either
State or Federal), Habeas Corpus petitions. As stated above, these petitions
require a full de novo review of all the lower court transcripts and documents.
Whether in State or Federal Court, criminal trials take about the same length of time for the prosecution to call witnesses and present and argue the case. All other aspects of the trial are also very similar because most States have based their Criminal Rules of Procedure, Rules of Evidence and Jury Instructions on their counterparts in the federal system. Of a total of 6,746 criminal trials in Federal Courts in 2000, the following cases lasted for the described periods of time. I have calculated and added the percentage each category comprises of the total number of trials. (See, Table 5.38, p. 452).
Further, based on my personal 13 years of experience as a criminal appellate paralegal, I have assigned the approximate number of transcript pages each trial of varying length will generate, and placed those numbers to the right of the chart. These transcript page totals include the average number of pre-trial hearing transcripts held on Discovery Notions and Motions to Suppress, which appear to some extent in every case, but not the briefing.
LENGTHS OF CRIMINAL TRIALS COMPLETED IN U.S. COURTS IN 2000
Applying these percentages to the 11,303 Habeas cases, the total average
number of only trial transcript pages in the cases requiring a de
novo review and dismissed in 2000 by the U.S. Courts of Appeals are
TOTAL TRANSCRIPT PAGES IN 11,297 HABEAS CASES
Unfortunately, the 8½ million pages of transcripts the 11,303 Habeas cases terminated in the year 2000 by the United States Courts of Appeals generated are not the end of it. When dealing with over 11,000 cases, even a few pages can add up quickly. In addition to the transcripts, the Judges are also required to review:
Direct Appeal Briefs
Appeals Court Opinion (Avg.)
Supreme Court Briefs (State or Federal)
Total* 40 p. x 11,303 = 452,120 pages
*Jurisdictional Memoranda to State and Federal Courts vary in allowed page length from 15 pages to 50 pages. I set this number on the low side.
Supreme Court Opinion (State or Federal)(Avg.)
Average Post-Conviction filings for State Prisoners
Habeas Corpus Required Forms & Traverse
U.S. District Court Proceedings
U.S. District Judge's Opinion
Certificate of Appealability Proceedings
The total number of pages generated by 11,303 State or Federal Habeas
actions comes to:
In the year 2000, according to the statistics above, in order to render
a complete de novo review of the 11,303 prisoner Habeas Corpus cases
that were a part of the 56,512 cases terminated by the United States Courts
of Appeals, bearing in mind this is only 20% of the total case load disposed
of by the Courts in 2000, the 167 judges, operating as 55 three-judge panels,
would have had to read 615 pages each day, for the total 366 days of the
year 2000. (2000 was a leap year, so they had one extra day to read. I
would have to assume they needed it).
After the judges completed reading these 866 pages of documents, they then had to complete the other 80% of their work for that work day.
Do the math. 55 panels x 260 work days = 14,300 work days. 12,387,089 total pages of documents divided by 14,300 = 866 pages a day. 55 panels times 366 working days = 20,130 working days. 12,387,089 total pages of documents divided by 20,130 working days = 615 pages a day. And that is for only 20% of the total cases the U.S. Courts of Appeals decided, terminated, disposed of in some manner, in the year 2000.
Even if you had 1320 judges, instead of 167 judges, operating in 440 three-judge panels, they would still have to read 108 pages a day each just to decide the Habeas Corpus cases terminated in the year 2000, and again, that would only be 20% of the cases they did decide that year!
Based on the above numbers, the average Habeas Corpus Appeal consists of a total of 1,096 pages. That's not a ridiculous number of pages for a trial and several years of litigation. The Appendix in my personal appeal from the denial of my Petition for a Writ of Habeas Corpus was 2096 pages in length, not counting over 100 pages of briefing by the State Attorney General and me in the U.S. Court of Appeals, which as stated above, I have omitted from my calculations in all the above terminated cases. As staffed and structured, our court system is inadequate to deal with the numbers of cases now being appealed.
I don't believe anyone reading this article can believe Judges are reading 866 pages a day, every day, and still doing another 80% of their work. The truth is simple and self-evident from the numbers above. The judges are not reading these documents. Instead, some first-year law student hired out of Harvard or Yale is skimming through this massive amount of documents and placing a short summary on the judges desk. The twenty or thirty page opinions issued in these cases are being written by these same law clerks, and merely edited by the judge, without the judge ever viewing the facts or evidence underlying the claimed constitutional errors presented.
We, as citizens of the United States, are being denied our birthright--the review of our convictions by the Government for Constitutional error, by an Article III Federal Judge, who is appointed for life to guarantee impartiality by raising him above politics and public censure that could influence his decisions on heinous crimes.
Prisoners have been complaining their cases are not being decided fairly by the Federal Courts of Appeals for several years now. No one listens to them. The present 11 Circuit Courts of Appeals were set up over 100 years ago, when hundreds, not tens of thousands, of cases were being heard. The Ninth Circuit Court of Appeals hears and decides cases from eleven States. It is time for a complete overhaul of the Judicial System in the United States, the creation of more U.S. Courts of Appeals, and the tripling or quadrupling of the number of Federal Judgeships on those Courts of Appeals.
In Plato's Republic, Socrates asked Thrasymachus what happens when a ruler errs? Thrasymachus replied that a ruler is not a ruler when he errs.
In The Prince, by Niccolo Machiavelli (1532), it is stated that although a prince can sometimes afford to be virtuous, flattery, deceit, and even murder are often necessary if the prince is to maintain himself in power.
I know of no human being who can read and understand 866 pages of documents a day, each and every work day, as 20% of his total work load, and dispense fair, correct and honorable justice. We are being deceived by our Courts and government.
In the year 1690, John Locke published Of Civil Government: The Second Treatise. He stated that in order to remedy the inconveniences resulting from a state of nature in which every man is judge of his own acts, men enter into a contract, thereby creating a civil society empowered to judge men and to defend the natural rights of men. He further stated that if a government violates the social contract by endangering the security and rights of the citizens, it rebels against the people, and the people have the right to dissolve the government. While "Pork Projects" flow freely through our legislative body, real problems such as the one described above, cannot even generate a letter in response to a prisoner or concerned citizen from those same legislators. It is time we demand responsible representatives who are not afraid to upset the apple-cart and make changes to our system that are fundamental as opposed to cosmetic.
To paraphrase Frank N. Magill in his book, Masterpieces of World Philosophy while discussing the Essay on Liberty, by John Stuart Mill (1859), p. 394, "Our government's task concerns how men are to meet the necessary demands of organized life without destroying the rights of the individual." Id.
Understand that I am a Rebel, not a Revolutionary, in the ideas I advance in my articles. "In rebellion, the slave rises against his master; in revolution he aspires to take his master's place." The Rebel, by Albert Camus (1951).
Like Sisyphus, condemned to roll his rock up the hill anew each day, I sit in this prison cell writing day after day, sounding an alarm to a threat to freedom which only citizens, like me, who are its victims, can clearly see. My life is shattered. I depended on the U.S. Court of Appeals for a fair review of my case. Had I received that fairness, I would be free now. But I find out the King's men were so swamped with calls for help from the 2,000,000 prisoners now being held, that they didn't have time to hear my cries.
As a child, I was taught to believe in the police and courts of my country. As a man, I have learned that justice actually is blind, haphazard and administered by deceitful people, unwilling to admit that the system is simply broken.
I think that's why they won't allow ex-felons to vote. We know too much.
James Love. All Rights Reserved.
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