# Case v. Nebraska/Concurrence Clark

* Court Documents
* Case Syllabus
* Opinion of the Court
* Concurring Opinions Clark Brennan
United States Supreme Court
381 U.S. 336
Case v. Nebraska
Argued: April 28, 1965. --- Decided: May 24, 1965
Mr. Justice CLARK, concurring.
As the Court points out, we granted certiorari in this case 'to decide whether the Fourteenth Amendment requires that the States afford state prisoners some adequate corrective process for the hearing and determination of claims of violation of federal constitutional guarantees.' Happily, Nebraska in the interim has adopted just such a procedure thus obviating the necessity of our passing upon the question.
It should be pointed out, however, that as early as 1949 this Court in Young v. Ragen, 337 U.S. 235, 69 S.Ct. 1073, 93 L.Ed. 1333, articulated the principle that the States must afford prisoners some 'clearly defined method by which they may raise claims of denial of federal rights.' Id., at 239, 69 S.Ct., at 1074, 93 L.Ed. 1333. But compare Mooney v. Holohan, 294 U.S. 103, 55 S.Ct. 340, 79 L.Ed. 791 (1935). In stating that proposition the Court noted: 'The doctrine of exhaustion of state remedies, to which this Court has required the scrupulous adherence of all federal courts * * * presupposes that some adequate state remedy exists. We recognize the difficulties with which the Illinois Supreme Court is faced in adapting available state procedures to (this) requirement * * *. Nevertheless, that requirement must be met.' Young v. Ragen, supra, at 238-239, 69 S.Ct. at 1074-1075.
Thereafter, the Illinois Post-Conviction Hearing Act was adopted. It was followed by passage of a statute in North Carolina in 1951 which was 'modeled' on the Illinois Act. Miller v. State, 237 N.C. 29, 51, 74 S.E.2d 513, 528 (1953). Nebraska is the seventh State to adopt such a statute since Young v. Ragen, supra. There exists in some States a wide variety of procedural techniques that have been used to deal with due process attacks on criminal convictions, i.e., basic common-law remedies such as habeas corpus, coram nobis and delayed motions for new trial. But the great variations in the scope and availability of such remedies result in their being entirely inadequate.
As a consequence there has been a tremendous increase in habeas corpus applications in federal courts. Indeed, in the Supreme Court alone they have increased threefold in the last 15 years. This has brought about much public agitation and debate over proposed limitations of the habeas corpus jurisdiction of federal courts. The necessity for such proposals has been based on various grounds, including that of federal-state comity; inordinate delay in the administration of criminal justice in the state courts; and the heavy burden on the federal judiciary. None of these will survive careful scrutiny.
Strangely enough there has been little light thrown on the necessity for more effective postconviction remedies in the State. In 1958 the Burton Committee reported out a preliminary draft of findings in which it stated
'that the law of state post-conviction process in many states was wholly inadequate to cope with the demands now being placed upon it. In some jurisdictions prisoners were altogether precluded from direct access to the courts. (Cochran v. State of Kansas, 316 U.S. 255, 62 S.Ct. 1068, 86 L.Ed. 1453 (1942); Dowd v. United States ex rel. Cook, 340 U.S. 206, 71 S.Ct. 262, 95 L.Ed. 215 (1951).) * * * In many more, the procedures recognized by state law failed to provide genuine opportunities for testing constitutional issues of the most numerous and important types. The result was that prisoners often failed to obtain hearings on their allegations in the state courts. This, in turn, increased the number of petitions in state and federal courts and was generally productive of frustrations in all persons concerned with the process.'
Believing that the practical answer to the problem is the enactment by the several States of postconviction remedy statutes I applaud the action of Nebraska. This will enable prisoners to 'air out' their claims in the state courts and will stop the rising conflict presently being generated between federal and state courts. This has proven true in Illinois where it is reported that federal applications from state prisoners dropped considerably after its Act was adopted. I understand that the Illinois Legislature is now considering the enlargement of the five-year limitations period of its present Act to a 20-year period. The consensus is that this will solve the problem entirely in Illinois, which was originally the 'sore spot' of the Nation in this regard.
I hope that the various States will follow the lead of Illinois, Nebraska, Maryland, North Carolina, Maine, Oregon and Wyoming in providing this modern procedure for testing federal claims in the state courts and thus relieve the federal courts of this ever-increasing burden.

## Notes

* ↑ Ill.Rev.Stat., c. 38, §§ 122-1-122-7 (1963).
* ↑ N.C.Gen.Stat. §§ 15-217-15-222 (Supp. 1963).
* ↑ Maryland, Maine, Oregon and Wyoming have passed similar legislation. Md.Ann. Code, Art. 27, §§ 645A to 645J (Supp. 1964); Me.Rev.Stat.Ann., c. 126, §§ 1-A to 1-G (Supp.1963); Ore.Rev.Stat. §§ 138.510-138.680 (1963); Wyo.Stat.Ann. §§ 7-408.1 to 7-408.8 (1963 Cum.Supp.). It should be noted, however, that six other States have adopted similar procedures by rule of court. See Alaska Sup.Ct. Rule 35(b); Del.Super.Ct.Crim.Proc. Rule 35, Del.C.Ann.; Fla. Rules Crim.Proc. 1, F.S.A. ch. 924 Appendix; Ky.Rules Crim.Proc. 11.42; Mo.Sup.Ct. Rule 27.26, V.A.M.R.; N.J.Crim.Prac. Rules of Super. and County Cts., Rule 3:10A-2.
* ↑ The late Mr. Justice Burton of revered memory was Chairman of the Committee on Post Conviction Remedies of the American Bar Association's Section of Judicial Administration. In August 1958 it circulated a preliminary draft of a study entitled Effective State Post-Conviction Procedures-Their Nature and Essentialities, which was prepared by the Seminar in Criminal Procedure of the University of Chicago Law School under the direction of Professor Francis A. Allen.
* ↑ Id., at 2-3.
This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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