Scalia on the Social Cost of Martinez v. Ryan

March 20th, 2012

In holding that there is a quasi-right to effective assistance of counsel in certain types of collateral review, Scalia in his dissent in Martinez v. Ryan opined on issues of social cost:

In practical effect, that may not make much difference in noncapital cases (except forthe squandering of state taxpayers’ money): The defendantwill stay in prison, continuing to serve his sentence, while federal habeas review grinds on. But in capital cases, it will effectively reduce the sentence, giving the defendant asmany more years to live, beyond the lives of the innocent victims whose life he snuffed out, as the process of federal habeas may consume. I guarantee that an assertion of ineffective assistance of trial counsel will be made in all capital cases from this date on, causing (because of today’sholding) execution of the sentence to be deferred untileither that claim, or the claim that appointed counsel wasineffective in failing to make that claim, has worked itsway through the federal system.

While the Court’s decision not to answer the question didnot avoid the costs a constitutional holding would haveimposed on States, it did avoid the Court’s need to confront the established rule that there is no right to counselin collateral proceedings.

Unlike today’s decision, Carrier and Coleman took account of the significant costs federalhabeas review imposes on States, including the “reductionin the finality of litigation and the frustration of ‘both the States’ sovereign power to punish offenders and their good-faith attempts to honor constitutional rights.’” Carrier, supra, at 487 (quoting Engle v. Isaac, 456 U. S. 107, 128 (1982)). Criminal conviction ought to be final beforesociety has forgotten the crime that justifies it. When a case arrives at federal habeas, the state conviction and sentence at issue (never mind the underlying crime) are already a dim memory, on average more than 6 years old(7 years for capital cases).5 I would adhere to the precedents that prevent a bad situation from becoming worse.

Far from avoiding the consequences a constitutionalholding would have imposed on the States, today’s holding as a practical matter requires States to appoint counsel ininitial-review collateral proceedings—and, to boot, eliminates the pre-existing assurance of escaping federalhabeas review for claims that appointed counsel fails to present. Despite the Court’s protestations to the contrary, the decision is a radical alteration of our habeas jurisprudence that will impose considerable economic costs on the States and further impair their ability to provide justice in a timely fashion. The balance it strikes between the finality of criminal judgments and the need to provide for review of defaulted claims of ineffective assistance of trial counsel grossly underestimates both the frequency of suchclaims in federal habeas, and the incentives to argue (since it is a free pass to federal habeas) that appointed counsel was ineffective in failing to raise such claims. The balance might have been close (though it would disregard our established jurisprudence) if the Court merely heldthat uncounseled failure to raise ineffective assistance of trial counsel would not constitute default. But in adding to that the rule that counseled failure to raise it may alsoprovide an excuse, the Court creates a monstrosity. Forthese reasons, I respectfully dissent.