Articles & Essays
Federal Review of State Criminal Convictions: A Structural Approach to Adequacy Doctrine

Eve Brensike Primus*

Modern state postconviction review systems feature procedural labyrinths so complicated and confusing that indigent defendants have no realistic prospect of complying with the rules. When defendants predictably fail to navigate these mazes, state and federal courts deem their claims procedurally defaulted and refuse to consider those claims on their merits. As a result, systemic violations of criminal procedure rights—like the right to effective counsel—persist without judicial correction.

But the law contains a tool that, if properly adapted, could bring these systemic problems to the attention of federal courts: procedural adequacy. Procedural adequacy doctrine gives federal courts the power to ignore procedural defaults and declare state procedural rules inadequate when those rules unduly burden defendants’ abilities to assert violations of their federal rights. And unlike the more commonly invoked cause and prejudice doctrine, which excuses default on the theory that a defendant’s unusual circumstances justify an exception to the rules, procedural adequacy doctrine allows courts to question the legitimacy of the state procedural regimes themselves. Procedural adequacy doctrine can therefore catalyze reform in a way that cause and prejudice cannot.

For procedural adequacy litigation to catalyze reform, however, it must be
adapted to modern circumstances in one crucial respect. Historically, procedural adequacy doctrine focused on cases involving the deliberate manipulation of individual rules. Today, what is needed is a structural approach to adequacy, one that would consider how the interaction of multiple procedural rules unfairly burdens federal rights. Such a structural approach to adequacy is consistent with the doctrine’s original purposes and is the most sensible way to apply procedural adequacy under current conditions. Litigants should accordingly deploy a structural approach to procedural adequacy doctrine and use it to stop states from burying systemic constitutional violations in complicated procedural labyrinths.


*Professor of Law, University of Michigan Law School. I would like to thank Claire Madill, Meghan LeFrancois, and Eric Yff for excellent research assistance and Sarah Scheinman for Bluebooking assistance. I would also like to thank Daniel Crane, Richard Friedman, Daniel Halberstam, Scott Hershovitz, Aziz Huq, Jerry Israel, Joan Larsen, Leah Litman, Julian Mortenson, Margo Schlanger, Gil Seinfeld, and Kim Thomas for helpful comments in the early stages of this project. I am grateful for the wonderful feedback I received presenting these ideas at the University of Chicago Law School and the University of Michigan Law School. Finally, I
wish to acknowledge the generous support of the William W. Cook Endowment of the University of Michigan.


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