Note

The Indian Treaty Power

Introduction

“Great nations, like great men, should keep their word.”1 1.Fed. Power Comm’n v. Tuscarora Indian Nation, 362 U.S. 99, 142 (1960) (Black, J., dissenting).Show More

The Supreme Court has an Indian law problem.2 2.This Note uses “Indian” and “Native American” interchangeably to refer to indigenous peoples, consistent with the norms of Indian law scholarship. See, e.g., Gregory Ablavsky, Beyond the Indian Commerce Clause, 124 Yale L.J. 1012, 1014 n.3 (2015).Show More For the first century of this country’s history, Indian tribes were treated as sovereign nations capable of signing treaties, selling their lands, and governing themselves. But 140 years ago, in United States v. Kagama, the Court changed course, bestowing upon the federal government a “plenary”—that is, an exclusive and unlimited—power over Indian affairs, which extended even to regulating the tribes’ internal affairs.3 3.118 U.S. 375, 384–85 (1886).Show More Kagama has been described as “the ghost of manifest destiny that will not let go,”4 4.M. Henry Ishitani & Alexandra Fay, Revising the Indian Plenary Power Doctrine, 29 Mich. J. Race & L. 1, 2 (2024).Show More and the plenary power it inaugurated has been condemned by scholars as untethered from the Constitution,5 5.See, e.g., Philip P. Frickey, Domesticating Federal Indian Law, 81 Minn. L. Rev. 31, 43 (1996) (observing that the “text of the Constitution lacks much of a hint of any plenary power”).Show More rooted in racialized stereotypes,6 6.See, e.g., Ishitani & Fay, supra note 4, at 2–3.Show More at odds with historical practice recognizing Indian sovereignty,7 7.See, e.g., Steven Paul McSloy, Back to the Future: Native American Sovereignty in the 21st Century, 20 N.Y.U. Rev. L. & Soc. Change 217, 218–20 (1993).Show More and “repugnant to the doctrine of enumerated powers.”8 8.Id. at 253.Show More Despite the criticisms lobbed at the plenary power, it has facilitated virtually the entire statutory framework governing Indian affairs—both good and bad. In addition to policies that have enabled the displacement and ethnic cleansing of Indian tribes,9 9.See Nell Jessup Newton, Federal Power Over Indians: Its Sources, Scope, and Limitations, 132 U. Pa. L. Rev. 195, 227 (1984) (describing the criminalization of indigenous religions and the removal of Native children to boarding schools).Show More the power also serves as the basis for most of Title 25—the portion of the United States Code that houses legislation designed to benefit the tribes in areas ranging from education to healthcare to child welfare.10 10.See Ishitani & Fay, supra note 4, at 17; Ablavsky, supra note 2, at 1016.Show More

But 2023’s Haaland v. Brackeen highlighted cracks in the plenary power’s foundation. Brackeen considered, but did not settle, the constitutionality of the Indian Child Welfare Act (“ICWA”),11 11.Haaland v. Brackeen, 143 S. Ct. 1609, 1629–31 (2023).Show More which regulates state custody proceedings regarding the placement of Indian children with the aim of keeping them in their tribal communities.12 12.Indian Child Welfare Act, 25 U.S.C. §§ 1901–1963.Show More If the Court had faithfully applied Kagama, this would have been an easy case—it could have simply invoked the plenary power without further discussion. But it did not. While the Court gestured at the doctrine, it also canvassed possible bases for ICWA rooted in the Constitution’s text and structure.13 13.Brackeen, 143 S. Ct. at 1630–32.Show More Among the potential alternatives the Court considered were the Indian Commerce Clause,14 14.Id. at 1630.Show More the Treaty Clause,15 15.Id. at 1631.Show More and the federal government’s inherent power over foreign affairs.16 16.Id.Show More But the opinion never settled which textual basis, if any, could sustain ICWA.17 17.Id. at 1630–31 (upholding ICWA because petitioners failed to discharge their “burden of establishing ICWA’s unconstitutionality”).Show More By invoking the plenary power while in the same breath exploring specific constitutional provisions, the Court betrayed its lack of faith in the plenary power’s continuing vitality. The stakes of this doctrinal instability are high; although Brackeen narrowly concerned ICWA, the Court’s waning confidence in the plenary power imperils all of Title 25.

Some scholars have argued that abandoning the doctrine would “effectively erase[]” a myriad of essential programs covering Indian healthcare, housing, education, and more.18 18.See Ablavsky, supra note 2, at 1016 (internal quotation marks omitted); Ishitani & Fay, supra note 4, at 17.Show More But if this is the only reason for adhering to a doctrine that is both contrary to the principle of enumerated powers and unsupported by the Constitution’s text, that reason has weak persuasive force. If the problem is that, without the plenary power, much of Title 25 would fall, the solution is to ground Indian legislation in a textual provision that can legitimately support it.

This Note proposes that the Treaty Clause of Article II, together with the Necessary and Proper Clause of Article I, allows the federal government to fulfill its obligations to Indian nations without resorting to plenary authority. Prior scholarship has largely converged on the Indian Commerce Clause as the proper constitutional home for Title 25;19 19.See, e.g., Stephen Andrews, In Defense of the Indian Commerce Clause, 9 Am. Indian L.J. 182, 204–06 (2021); Ablavsky, supra note 2, at 1029.Show More but, as this Note demonstrates, that provision is insufficient to sustain legislation like ICWA, which lacks any nexus to commerce. While the Court has invoked the Treaty Clause a few times in addressing federal authority over Indian affairs,20 20.Brackeen, 143 S. Ct. at 1628; McClanahan v. Ariz. State Tax Comm’n, 411 U.S. 164, 172 n.7 (1973); United States v. Lara, 541 U.S. 193, 200 (2004); Morton v. Mancari, 417 U.S. 535, 552 (1974).Show More and a handful of scholars have briefly gestured at the provision,21 21.See, e.g., Lorianne Updike Toler, The Missing Indian Affairs Clause, 88 U. Chi. L. Rev. 413, 482 (2021) (arguing that, in the absence of a plenary power, the solution is to ratify new treaties with the tribes); Saikrishna Prakash, Against Tribal Fungibility, 89 Corn. L. Rev. 1069, 1095–97 (2004) (arguing that specific treaties might give the government narrow authority vis-à-vis particular tribes).Show More this Note is the first piece of legal scholarship to fully consider its potential and to operationalize it through the Necessary and Proper Clause.

This Note proceeds in three parts. Part I details the origins and scholarly critiques of the plenary power doctrine and traces the Supreme Court’s slow retreat from it. Part II argues that the most popular alternative to the plenary power, the Indian Commerce Clause, is insufficient to sustain portions of Title 25, specifically the provisions lacking any nexus to economic enterprise. Such provisions exist in a state of constitutional limbo. Part III fills that gap, arguing that the Necessary and Proper Clause authorizes Congress to implement the United States’ treaties with Indian tribes, and that Title 25 legislation is “necessary and proper” to honor those commitments. While this Note focuses on ICWA as a uniquely vulnerable statute, its arguments apply with equal force to other provisions in Title 25.22 22.Doing away with the plenary power “would render much of federal Indian law . . . at least preliminarily suspect.” Ishitani & Fay, supra note 4, at 17. Because noneconomic crimes, United States v. Morrison, 529 U.S. 598, 617 (2000), and land use, Lake Country Ests., Inc. v. Tahoe Reg’l Plan. Agency, 440 U.S. 391, 402 (1979), are traditionally regulated at the local level, Title 25 legislation that operates in these areas, similar to ICWA, cannot be sustained under the Commerce Clause. Nonetheless, this legislation too might be considered “necessary and proper” to implementing various treaties. Compare, e.g., Indian Civil Rights Act § 204, 25 U.S.C. § 1304 (authorizing tribal jurisdiction over domestic violence offenses committed on Indian lands), Indian Reorganization Act, 25 U.S.C. §§ 5101–5129 (taking land into trust for the tribes and managing its use), and 25 U.S.C. §§ 371–380 (regulating the intestacy of Indian lands), with Treaty with the Navajo Indians, Navajo-U.S., art. I, ¶ 2, June 1, 1868, 15 Stat. 667, https://treaties.okstate.edu/treaties/treaty-‌with-the-navaho-1868-1015 [https://perma.cc/2WQY-8EUN] (providing for the punishment of white offenders in Indian country), Treaty with the Cherokees, Cherokee-U.S., arts. VIII–IX, July 2, 1791, 7 Stat. 39, https://treaties.okstate.edu/treaties/treaty-with-the-cherokee-179‌1-0029 [https://perma.cc/Z45F-ZQZ4] (setting apart land for the tribe and providing for assistance in managing it), and Treaty with the Chickasaw, Chickasaw-U.S., art. IV, May 24, 1834, 7 Stat. 450, https://treaties.okstate.edu/treaties/treaty-with-the-chickasaw-183‌4-0418 [https://perma.cc/JX24-KPQS] (providing for the descent of Indian lands to heirs).Show More

  1.  Fed. Power Comm’n v. Tuscarora Indian Nation, 362 U.S. 99, 142 (1960) (Black, J., dissenting). ↑
  2.  This Note uses “Indian” and “Native American” interchangeably to refer to indigenous peoples, consistent with the norms of Indian law scholarship. See, e.g., Gregory Ablavsky, Beyond the Indian Commerce Clause, 124 Yale L.J. 1012, 1014 n.3 (2015). ↑
  3.  118 U.S. 375, 384–85 (1886). ↑
  4.  M. Henry Ishitani & Alexandra Fay, Revising the Indian Plenary Power Doctrine, 29 Mich. J. Race & L. 1, 2 (2024). ↑
  5.  See, e.g., Philip P. Frickey, Domesticating Federal Indian Law, 81 Minn. L. Rev. 31, 43 (1996) (observing that the “text of the Constitution lacks much of a hint of any plenary power”). ↑
  6.  See, e.g., Ishitani & Fay, supra note 4, at 2–3. ↑
  7.  See, e.g., Steven Paul McSloy, Back to the Future: Native American Sovereignty in the 21st Century, 20 N.Y.U. Rev. L. & Soc. Change 217, 218–20 (1993). ↑
  8.  Id. at 253. ↑
  9.  See Nell Jessup Newton, Federal Power Over Indians: Its Sources, Scope, and Limitations, 132 U. Pa. L. Rev. 195, 227 (1984) (describing the criminalization of indigenous religions and the removal of Native children to boarding schools). ↑
  10.  See Ishitani & Fay, supra note 4, at 17; Ablavsky, supra note 2, at 1016. ↑
  11.  Haaland v. Brackeen, 143 S. Ct. 1609, 1629–31 (2023). ↑
  12.  Indian Child Welfare Act, 25 U.S.C. §§ 1901–1963. ↑
  13.  Brackeen, 143 S. Ct. at 1630–32. ↑
  14.  Id. at 1630. ↑
  15.  Id. at 1631. ↑
  16.  Id. ↑
  17.  Id. at 1630–31 (upholding ICWA because petitioners failed to discharge their “burden of establishing ICWA’s unconstitutionality”). ↑
  18.  See Ablavsky, supra note 2, at 1016 (internal quotation marks omitted); Ishitani & Fay, supra note 4, at 17. ↑
  19.  See, e.g., Stephen Andrews, In Defense of the Indian Commerce Clause, 9 Am. Indian L.J. 182, 204–06 (2021); Ablavsky, supra note 2, at 1029. ↑
  20.  Brackeen, 143 S. Ct. at 1628; McClanahan v. Ariz. State Tax Comm’n, 411 U.S. 164, 172 n.7 (1973); United States v. Lara, 541 U.S. 193, 200 (2004); Morton v. Mancari, 417 U.S. 535, 552 (1974). ↑
  21.  See, e.g., Lorianne Updike Toler, The Missing Indian Affairs Clause, 88 U. Chi. L. Rev. 413, 482 (2021) (arguing that, in the absence of a plenary power, the solution is to ratify new treaties with the tribes); Saikrishna Prakash, Against Tribal Fungibility, 89 Corn. L. Rev. 1069, 1095–97 (2004) (arguing that specific treaties might give the government narrow authority vis-à-vis particular tribes). ↑

  22.  Doing away with the plenary power “would render much of federal Indian law . . . at least preliminarily suspect.” Ishitani & Fay, supra note 4, at 17. Because noneconomic crimes, United States v. Morrison, 529 U.S. 598, 617 (2000), and land use, Lake Country Ests., Inc. v. Tahoe Reg’l Plan. Agency, 440 U.S. 391, 402 (1979), are traditionally regulated at the local level, Title 25 legislation that operates in these areas, similar to ICWA, cannot be sustained under the Commerce Clause. Nonetheless, this legislation too might be considered “necessary and proper” to implementing various treaties. Compare, e.g., Indian Civil Rights Act § 204, 25 U.S.C. § 1304 (authorizing tribal jurisdiction over domestic violence offenses committed on Indian lands), Indian Reorganization Act, 25 U.S.C. §§ 5101–5129 (taking land into trust for the tribes and managing its use), and 25 U.S.C. §§ 371–380 (regulating the intestacy of Indian lands), with Treaty with the Navajo Indians, Navajo-U.S., art. I, ¶ 2, June 1, 1868, 15 Stat. 667, https://treaties.okstate.edu/treaties/treaty-‌with-the-navaho-1868-1015 [https://perma.cc/2WQY-8EUN] (providing for the punishment of white offenders in Indian country), Treaty with the Cherokees, Cherokee-U.S., arts. VIII–IX, July 2, 1791, 7 Stat. 39, https://treaties.okstate.edu/treaties/treaty-with-the-cherokee-179‌1-0029 [https://perma.cc/Z45F-ZQZ4] (setting apart land for the tribe and providing for assistance in managing it), and Treaty with the Chickasaw, Chickasaw-U.S., art. IV, May 24, 1834, 7 Stat. 450, https://treaties.okstate.edu/treaties/treaty-with-the-chickasaw-183‌4-0418 [https://perma.cc/JX24-KPQS] (providing for the descent of Indian lands to heirs). ↑

Confessions Without Consequence: The Case for Attorney General Deference

­­­The Supreme Court’s recent decisions in Glossip v. Oklahoma and Escobar v. Texas have surfaced an understudied and increasingly consequential phenomenon in American criminal law: the prosecutorial confession of error. Anglo-American courts have recognized such confessions for centuries, and Young v. United States commands that federal courts afford them “great weight.” Yet judicial practice has grown increasingly inconsistent—most acutely at the state level, where courts routinely treat confessions as ordinary litigation positions rather than as the considered judgment of the sovereign’s chief law officers. This dysfunction reaches its apex when the confessor is a state attorney general, whose constitutional authority, democratic legitimacy, and investigative capacity distinguish them from every other prosecutorial actor. Glossip illustrates the problem starkly: the Oklahoma Attorney General confessed error in a capital case after a comprehensive independent investigation, only to have the Oklahoma Court of Criminal Appeals dismiss the confession as “not based in law or fact.”

Pulling from state case law that the literature has largely ignored, this Note argues that the current approach cannot be defended. It proposes a structured four-factor framework—merits, motives, institutional credibility, and equities—designed to restore coherence to confession-of-error doctrine, to vindicate the unique institutional role of state attorneys general, and to ensure that when the State concedes its case cannot stand, the judiciary listens.

Introduction

When Oklahoma Attorney General Gentner Drummond reviewed Richard Glossip’s capital murder case, he formally confessed error.1 1.Glossip v. Oklahoma, 145 S. Ct. 612, 623–27 (2025) (describing the Attorney General’s confession of error, including acknowledgment of prosecutorial misconduct and failure to correct false testimony under Napue v. Illinois, 360 U.S. 264 (1959)).Show More Following an independent investigation commissioned by the state legislature,2 2.See id. at 621 (describing an independent investigation conducted by law firm Reed Smith).Show More Drummond concluded that prosecutorial misconduct had fatally compromised Glossip’s conviction. The Oklahoma Court of Criminal Appeals (“OCCA”) responded with dismissiveness, stating that “[t]he State’s concession is not based in law or fact.”3 3.Glossip v. State, 2023 OK CR 5, ¶ 25, 529 P.3d 218, 226.Show More The OCCA offered little explanation for this rejection and ultimately declined to vacate Glossip’s death sentence.4 4.See id. ¶ 12.Show More This extraordinary rejection of a confession of error reflects a doctrine overlooked, where state court approaches to prosecutorial confessions remain inconsistent and underdeveloped as lives hang in the balance.5 5.Ironically, Oklahoma had adopted a highly deferential regime, granting relief in all 298 cases involving confessions of error between 1908 and 2022, before departing from that century-long practice in this very case, underscoring the doctrine’s current instability. See, e.g., Brief of the National Ass’n of Criminal Defense Lawyers as Amicus Curiae in Support of Petitioner at 2, Glossip v. Oklahoma, 145 S. Ct. 612 (2025) (No. 22-7466) [hereinafter NACDL Brief] (“Indeed, in all 298 cases involving confessions of error between 1908 and 2022, the OCCA ultimately granted relief to the defendant.”).Show More Weeks later, the Texas Court of Criminal Appeals (“TCCA”) followed suit,6 6.Ex parte Escobar, 676 S.W.3d 664, 672–75 (Tex. Crim. App. 2023).Show More rejecting the Travis County District Attorney’s confession in Areli Escobar’s capital case even though the Supreme Court had previously remanded the case “in light of the confession of error.”7 7.Escobar v. Texas, 143 S. Ct. 557 (2023) (mem.).Show More Escobar then returned to the Supreme Court, with one question presented squarely addressing the confession-of-error component—namely, whether the Fourteenth Amendment’s Due Process Clause requires reversal when “a capital conviction is so infected with errors that the State no longer seeks to defend it.”8 8.Petition for a Writ of Certiorari at i, Escobar v. Texas, 145 S. Ct. 1423 (2025) (mem.) (No. 23-934).Show More The Supreme Court denied certiorari, leaving the doctrinal issue alive and unwell.9 9.Escobar, 145 S. Ct. at 1423 (denying certiorari).Show More

Glossip and Escobar reveal a deference doctrine unadopted in state courts. At the federal level, Young v. United States asks that courts give “great weight” to confessions of error by federal prosecutors.10 10.Young v. United States, 315 U.S. 257, 258–59 (1942) (“The considered judgment of the law enforcement officers that reversible error has been committed is entitled to great weight, but our judicial obligations compel us to examine independently the errors confessed.”).Show More But the established analogs in state courts oftentimes prove toothless.11 11.The TCCA exemplifies this judicial resistance. While dutifully reciting that confessions are entitled to “great weight”—if acknowledged at all—the TCCA proceeds to reject them outright, typifying the broader failure to honor deference principles in criminal post-conviction litigation. See, e.g., Ex parte Escobar, 676 S.W.3d at 672, 674–75 (acknowledging that “the State’s confession of error in a criminal case is important and carries great weight” but that “we are not bound by it” and rejecting the Travis County District Attorney’s confession despite the prosecution’s reexamination finding due process violations based on false DNA evidence (quoting Estrada v. State, 313 S.W.3d 274, 286 (Tex. Crim. App. 2010))); Rogers v. State, 594 S.W.3d 432, 434–35 (Tex. App. 2019) (conducting independent review before rejecting the State’s confession); infra Part II (examining state court treatments of confessions of error across a variety of states).Show More When state courts continue to imprison defendants despite credible confessions of error by state prosecutors, they undermine notions of fundamental fairness, separation of powers principles, and predictability in the law.12 12.Federal courts apply the doctrine with similar inconsistency, with most circuits showing little deference. See, e.g., United States v. Ramirez, 606 F.3d 396, 398 (7th Cir. 2010) (indicating that the correct standard given the facts and circumstances in the case was plain error); United States v. Cheek, 94 F.3d 136, 140 (4th Cir. 1996) (stating that the government’s opinion concerning a defendant’s right to a new trial did not bind the court); United States v. Vasquez, 85 F.3d 59, 60 (2d Cir. 1996) (acknowledging that the government’s concession of error and desire to vacate a sentence do not automatically govern an appellate court’s ruling).Show More

State courts compound this dysfunction by overlooking institutional distinctions within the prosecutorial hierarchy. Although prosecutors generally warrant some degree of deference when confessing error, confessions by attorneys general—who are elected officials with statewide constitutional authority to represent the sovereign—should receive heightened deference. This Note argues for such meaningful deference to attorney general confessions, but the Court’s decision in Glossip reflects a more fundamental concern: state courts’ refusal to honor any prosecutorial confession, even when both parties agree that a conviction cannot stand.13 13.Advisory Opinions: A Dispatch Podcast, Blockbuster Cases, The Dispatch, at 45:15 (July 10, 2025), https://thedispatch.com/podcast/advisoryopinions/blockbuster-cases/ [https:/‌/perma.cc/SX7G-GVK3] (featuring Professor Daniel Epps arguing that the case was a “cause célèbre” and that the Court recognized the injustice of the Glossip case and tried to find an equitable outcome).Show More While some state courts do formally acknowledge the attorney general’s position, they do not discuss the attorney general’s uniquely situated legal role and do not provide the meaningful deference this Note argues for.14 14.See, e.g., Marks v. State, 496 P.2d 66, 67–68 (Alaska 1972); People v. Hayes, 699 P.2d 1259, 1263 (Cal. 1985) (acknowledging the Attorney General’s confession of error and, after independent review, concluding that the record “fully supports” the confession, without explaining why the Attorney General’s institutional role warranted consideration); State v. Maes, 665 P.2d 1169, 1171–72 (N.M. Ct. App. 1983) (quoting Marks for the proposition that courts must undertake independent review despite a confession—illustrating cross-jurisdictional adoption of the independent-review standard without engagement with the confessor’s institutional role).Show More This institutional blindness reduces all prosecutorial confessions to mere litigation positions, ignoring the unique democratic, constitutional, and functional virtues that distinguish state attorneys general from sovereign litigators at every other level—local, state, and federal.15 15.See infra Section III.B for a discussion of these virtues.Show More

This Note addresses a critical gap in both scholarship and case law. While existing literature examines the Solicitor General’s confessions before the Supreme Court, practically no scholarship examines the confessions of state attorneys general in state court or state prosecutorial confessions writ large16 16.See Neal Kumar Katyal, The Solicitor General and Confession of Error, 81 Fordham L. Rev. 3027, 3029–30 (2013) (examining the Solicitor General’s practice before the Supreme Court); see also Charles L. Maak, Note, The Confession of Error, 1968 Utah L. Rev. 286, 287 (surveying state and federal confession-of-error practices); Alexander L. Merritt, Note, Confession of Error by Administrative Agencies, 67 Wash. & Lee L. Rev. 1197, 1198–99 (2010) (analyzing confession of error in the administrative law context).Show More—despite their increasing relevance across criminal contexts.17 17.See infra Part III (discussing Glossip and Escobaras two major recent cases).Show More The Note undertakes an extensive review of state case law and federal appellate decisions originating in state court. It reveals that state courts consistently deny what this Note terms “meaningful deference” to executive admissions, particularly those from state attorneys general despite their distinctive institutional position.

The Note proposes a structured framework to replace the ad hoc approach currently governing confession doctrine. The absence of principled evaluative standards produces unpredictability and inequality when courts review prosecutorial confessions. A uniform analytical framework—built on four weighted factors—provides a blueprint without dictating outcomes or stripping state courts of institutional autonomy. By offering courts a common set of considerations adaptable to varied state procedures, this framework ensures that deference has substantive meaning across jurisdictions while highlighting why state attorneys general merit unique treatment.

The Note proceeds in four parts. Part I defines confession-of-error doctrine and examines its development. Part II surveys the modern landscape. Part III emphasizes the indeterminate nature of modern judicial approaches. Part IV proposes a manageable framework and applies it to high-profile cases while anticipating objections.

  1.  Glossip v. Oklahoma, 145 S. Ct. 612, 623–27 (2025) (describing the Attorney General’s confession of error, including acknowledgment of prosecutorial misconduct and failure to correct false testimony under Napue v. Illinois, 360 U.S. 264 (1959)). ↑
  2.  See id. at 621 (describing an independent investigation conducted by law firm Reed Smith). ↑
  3.  Glossip v. State, 2023 OK CR 5, ¶ 25, 529 P.3d 218, 226. ↑
  4.  See id. ¶ 12. ↑
  5.  Ironically, Oklahoma had adopted a highly deferential regime, granting relief in all 298 cases involving confessions of error between 1908 and 2022, before departing from that century-long practice in this very case, underscoring the doctrine’s current instability. See, e.g., Brief of the National Ass’n of Criminal Defense Lawyers as Amicus Curiae in Support of Petitioner at 2, Glossip v. Oklahoma, 145 S. Ct. 612 (2025) (No. 22-7466) [hereinafter NACDL Brief] (“Indeed, in all 298 cases involving confessions of error between 1908 and 2022, the OCCA ultimately granted relief to the defendant.”). ↑
  6.  Ex parte Escobar, 676 S.W.3d 664, 672–75 (Tex. Crim. App. 2023). ↑
  7.  Escobar v. Texas, 143 S. Ct. 557 (2023) (mem.). ↑
  8.  Petition for a Writ of Certiorari at i, Escobar v. Texas, 145 S. Ct. 1423 (2025) (mem.) (No. 23-934). ↑
  9.  Escobar, 145 S. Ct. at 1423 (denying certiorari). ↑
  10.  Young v. United States, 315 U.S. 257, 258–59 (1942) (“The considered judgment of the law enforcement officers that reversible error has been committed is entitled to great weight, but our judicial obligations compel us to examine independently the errors confessed.”). ↑
  11.  The TCCA exemplifies this judicial resistance. While dutifully reciting that confessions are entitled to “great weight”—if acknowledged at all—the TCCA proceeds to reject them outright, typifying the broader failure to honor deference principles in criminal post-conviction litigation. See, e.g., Ex parte Escobar, 676 S.W.3d at 672, 674–75 (acknowledging that “the State’s confession of error in a criminal case is important and carries great weight” but that “we are not bound by it” and rejecting the Travis County District Attorney’s confession despite the prosecution’s reexamination finding due process violations based on false DNA evidence (quoting Estrada v. State, 313 S.W.3d 274, 286 (Tex. Crim. App. 2010))); Rogers v. State, 594 S.W.3d 432, 434–35 (Tex. App. 2019) (conducting independent review before rejecting the State’s confession); infra Part II (examining state court treatments of confessions of error across a variety of states). ↑
  12.  Federal courts apply the doctrine with similar inconsistency, with most circuits showing little deference. See, e.g., United States v. Ramirez, 606 F.3d 396, 398 (7th Cir. 2010) (indicating that the correct standard given the facts and circumstances in the case was plain error); United States v. Cheek, 94 F.3d 136, 140 (4th Cir. 1996) (stating that the government’s opinion concerning a defendant’s right to a new trial did not bind the court); United States v. Vasquez, 85 F.3d 59, 60 (2d Cir. 1996) (acknowledging that the government’s concession of error and desire to vacate a sentence do not automatically govern an appellate court’s ruling). ↑
  13.  Advisory Opinions: A Dispatch Podcast, Blockbuster Cases, The Dispatch, at 45:15 (July 10, 2025), https://thedispatch.com/podcast/advisoryopinions/blockbuster-cases/ [https:/‌/perma.cc/SX7G-GVK3] (featuring Professor Daniel Epps arguing that the case was a “cause célèbre” and that the Court recognized the injustice of the Glossip case and tried to find an equitable outcome). ↑
  14.  See, e.g., Marks v. State, 496 P.2d 66, 67–68 (Alaska 1972); People v. Hayes, 699 P.2d 1259, 1263 (Cal. 1985) (acknowledging the Attorney General’s confession of error and, after independent review, concluding that the record “fully supports” the confession, without explaining why the Attorney General’s institutional role warranted consideration); State v. Maes, 665 P.2d 1169, 1171–72 (N.M. Ct. App. 1983) (quoting Marks for the proposition that courts must undertake independent review despite a confession—illustrating cross-jurisdictional adoption of the independent-review standard without engagement with the confessor’s institutional role). ↑
  15.  See infra Section III.B for a discussion of these virtues. ↑
  16.  See Neal Kumar Katyal, The Solicitor General and Confession of Error, 81 Fordham L. Rev. 3027, 3029–30 (2013) (examining the Solicitor General’s practice before the Supreme Court); see also Charles L. Maak, Note, The Confession of Error, 1968 Utah L. Rev. 286, 287 (surveying state and federal confession-of-error practices); Alexander L. Merritt, Note, Confession of Error by Administrative Agencies, 67 Wash. & Lee L. Rev. 1197, 1198–99 (2010) (analyzing confession of error in the administrative law context). ↑
  17.  See infra Part III (discussing Glossip and Escobar as two major recent cases). ↑

Post-Conviction Channeling

­­­­People seeking to vacate their criminal convictions face bleak prospects. The reasons for this are myriad, from deferential standards of review to blanket bans on entire categories of claims. Yet lurking beneath these contributors is another, lesser-studied problem: when petitioners seek post-conviction relief, their cases are often decided by the same judges who presided over their trials or accepted their guilty pleas. That practice—which this Note calls “judge channeling”—is widespread, with most jurisdictions adopting it through either formal rules or informal practices. Proponents argue that judge channeling maximizes judicial economy because the trial judge’s familiarity with a case enables more efficient claim resolution. However, a robust body of social science research reveals a devastating trade-off: unconscious biases prevent judges from recognizing their own errors, hobbling petitioners seeking to challenge their convictions and vindicate meritorious claims. Prior scholarship has emphasized normative problems with judge channeling, but the analysis ends there. This Note intervenes in that narrow discourse by making two novel contributions to existing literature. First, it offers the first comprehensive study of state channeling procedures, explaining what they do and how they differ across jurisdictions. Second, this Note lays out alternative procedures that balance independent review with deliberative efficiency, and it considers which institutions are best poised to bring those procedures to life.

Introduction

In the popular imagination, the life cycle of a criminal case begins with an indictment and ends on appeal. For many defendants, however, exhaustion of direct appeal marks the beginning, not the end. There also exists a vast universe of post-conviction relief, including federal and state habeas corpus, writs of error, actual innocence petitions, and more. Those convicted at trial face a steep uphill battle, with only twelve percent of state convictions1 1.Nicole L. Waters, Anne Gallegos, James Green & Martha Rozsi, U.S. Dep’t of Just., Criminal Appeals in State Courts 1 (2015), https://bjs.ojp.gov/content/pub/pdf/casc.pdf [http‌s://perma.cc/2M64-RMA2].Show More and less than seven percent of federal convictions2 2.Just the Facts: U.S. Courts of Appeals, Admin. Off. of the U.S. Cts. tbl. 2 (Dec. 20, 2016), https://www.uscourts.gov/data-news/judiciary-news/2016/12/20/just-facts-us-courts-a‌ppeals [https://perma.cc/T9C7-5HW7].Show More being reversed on appeal. And if direct appeal is a hill, then post-conviction relief is a mountain: less than one percent of federal habeas petitions succeed,3 3.Nancy J. King & Joseph L. Hoffmann, Envisioning Post-Conviction Review for the Twenty-First Century, 78 Miss. L.J. 433, 437 (2008).Show More and state habeas presents similar challenges.4 4.Aggregated state habeas data is elusive, but studies focused on particular states and case types support this claim. See, e.g., David R. Dow & Jeffrey R. Newberry, Reversal Rates in Capital Cases in Texas, 2000–2020, 68 UCLA L. Rev. Discourse 2, 12 (2020) (finding a 5.6% success rate on state habeas review of death penalty cases in Texas); Mary K. McComb, Off. of the State Pub. Def., California’s Broken Death Penalty: It’s Time to Stop Tinkering with the Machinery of Death 58–59 (2021), https://www.ospd.ca.gov/wp-cont‌ent/uploads/2024/04/White-Paper.pdf [https://perma.cc/5HDM-UHHZ] (finding that the California Supreme Court has granted habeas relief in 4% of state capital cases since 1978).Show More

That dire prognosis makes sense on some level. After a defendant has pled guilty or lost at trial, and after they have benefitted from the rigors of direct appeal, post-conviction relief should be an uncommon remedy. Yet innocent people are convicted and imprisoned notwithstanding these safeguards,5 5.See Charles E. Loeffler, Jordan Hyatt & Greg Ridgeway, Measuring Self-Reported Wrongful Convictions Among Prisoners, 35 J. Quantitative Criminology 259, 259, 261, 276 (2019) (estimating that 6% of non-capital state offenders are factually innocent).Show More so there must be reasons other than guilt that explain their continued incarceration. Many of these reasons are procedural: people seeking habeas relief must navigate a tangled labyrinth of exhaustion requirements, procedural default rules, statutes of limitations, and bars to successive petitions—obstacles that also pervade state law.6 6.See infra Section I.A.Show More Layered atop these rules governing challenges to legally defective convictions are additional rules that make proving innocence exceedingly difficult for those afforded the full panoply of constitutional rights.7 7.See infra Section I.C. See generally Daniel S. Medwed, Barred: Why the Innocent Can’t Get Out of Prison (2022) (exploring procedural barriers to proving innocence after conviction).Show More

These procedural hurdles matter, but hiding in plain sight is another potent factor that shapes case outcomes: who decides the case. The availability of post-conviction relief is often determined by the same judge who presided over the petitioner’s trial or accepted their guilty plea, a phenomenon this Note calls “judge channeling.” The practice is popular, with most jurisdictions having statutes, judicial rules, and informal practices that permit, and in some cases require, the original trial judge to adjudicate petitions for post-conviction relief.8 8.See infra Section II.B; Appendix.Show More Defenders of judge channeling argue that the trial judge’s familiarity with the facts and issues animating a case allows them to dispose of cases more efficiently.9 9.See infra Section II.A.Show More This Note turns that argument on its head: familiarity with the underlying case is precisely the issue, creating blind spots and preventing the correction of judicial errors—sometimes grave and consequential ones.

Despite its popularity among legislatures and courts, judge channeling has long been a target of attack in the academic literature surrounding post-conviction procedure.10 10.See, e.g., Daniel S. Medwed, Up the River Without a Procedure: Innocent Prisoners and Newly Discovered Non-DNA Evidence in State Courts, 47 Ariz. L. Rev. 655, 679, 699–708 (2005) [hereinafter Medwed, Up the River Without a Procedure]; Daniel S. Medwed, California Dreaming? The Golden State’s Restless Approach to Newly Discovered Evidence of Innocence, 40 U.C. Davis L. Rev. 1437, 1472–75 (2007) [hereinafter Medwed, California Dreaming?]; Eli Paul Mazur, “I’m Innocent”: Addressing Freestanding Claims of Actual Innocence in State and Federal Courts, 25 N.C. Cent. L.J. 197, 230–34 (2003); Stephanie Roberts Hartung, Missing the Forest for the Trees: Federal Habeas Corpus and the Piecemeal Problem in Actual Innocence Cases, 10 Stan. J.C.R. & C.L. 55, 61–62 (2014); Joseph M. Bowman, Note, Processing a Motion Attacking Sentence Under Section 2255 of the Judicial Code, 111 U. Pa. L. Rev. 788, 800–02 (1963). As these titles suggest, most prior scholarship addresses innocence claims specifically rather than post-conviction relief more generally.Show More However, no piece of legal scholarship has made post-conviction judge assignment its exclusive or even primary focus. This Note fills that gap. While it leans on past normative critiques, it also makes two novel contributions of its own. The first contribution is descriptive, providing the first comprehensive survey of state post-conviction channeling procedures. The second contribution is prescriptive, introducing and comparing alternative ways of adjudicating post-conviction claims. Prior work begins and ends by pointing out a problem; this Note takes the additional steps of analyzing that problem in detail and offering workable solutions.

This Note proceeds in four parts. Part I broadly surveys post-conviction relief in the United States, paying special attention to habeas corpus, writs of error, and claims of actual innocence. Part II explores the phenomenon of post-conviction judge channeling, describing what it is, how it works across jurisdictions, and the general arguments marshaled in its favor. Part III then pivots from the descriptive to the normative, explaining how judge channeling entrenches bias, ossifies error, and deprives petitioners of meaningful review. Finally, Part IV considers alternative models of post-conviction adjudication that would better allow petitioners to vindicate meritorious claims without forfeiting judicial economy. In doing so, it explores what alternative regimes might look like and how reform might take place.

  1.  Nicole L. Waters, Anne Gallegos, James Green & Martha Rozsi, U.S. Dep’t of Just., Criminal Appeals in State Courts 1 (2015), https://bjs.ojp.gov/content/pub/pdf/casc.pdf [http‌s://perma.cc/2M64-RMA2]. ↑
  2.  Just the Facts: U.S. Courts of Appeals, Admin. Off. of the U.S. Cts. tbl. 2 (Dec. 20, 2016), https://www.uscourts.gov/data-news/judiciary-news/2016/12/20/just-facts-us-courts-a‌ppeals [https://perma.cc/T9C7-5HW7]. ↑
  3.  Nancy J. King & Joseph L. Hoffmann, Envisioning Post-Conviction Review for the Twenty-First Century, 78 Miss. L.J. 433, 437 (2008). ↑
  4.  Aggregated state habeas data is elusive, but studies focused on particular states and case types support this claim. See, e.g., David R. Dow & Jeffrey R. Newberry, Reversal Rates in Capital Cases in Texas, 2000–2020, 68 UCLA L. Rev. Discourse 2, 12 (2020) (finding a 5.6% success rate on state habeas review of death penalty cases in Texas); Mary K. McComb, Off. of the State Pub. Def., California’s Broken Death Penalty: It’s Time to Stop Tinkering with the Machinery of Death 58–59 (2021), https://www.ospd.ca.gov/wp-cont‌ent/uploads/2024/04/White-Paper.pdf [https://perma.cc/5HDM-UHHZ] (finding that the California Supreme Court has granted habeas relief in 4% of state capital cases since 1978). ↑
  5.  See Charles E. Loeffler, Jordan Hyatt & Greg Ridgeway, Measuring Self-Reported Wrongful Convictions Among Prisoners, 35 J. Quantitative Criminology 259, 259, 261, 276 (2019) (estimating that 6% of non-capital state offenders are factually innocent). ↑
  6.  See infra Section I.A. ↑
  7.  See infra Section I.C. See generally Daniel S. Medwed, Barred: Why the Innocent Can’t Get Out of Prison (2022) (exploring procedural barriers to proving innocence after conviction). ↑
  8.  See infra Section II.B; Appendix. ↑
  9.  See infra Section II.A. ↑

  10.  See, e.g., Daniel S. Medwed, Up the River Without a Procedure: Innocent Prisoners and Newly Discovered Non-DNA Evidence in State Courts, 47 Ariz. L. Rev. 655, 679, 699–708 (2005) [hereinafter Medwed, Up the River Without a Procedure]; Daniel S. Medwed, California Dreaming? The Golden State’s Restless Approach to Newly Discovered Evidence of Innocence, 40 U.C. Davis L. Rev. 1437, 1472–75 (2007) [hereinafter Medwed, California Dreaming?]; Eli Paul Mazur, “I’m Innocent”: Addressing Freestanding Claims of Actual Innocence in State and Federal Courts, 25 N.C. Cent. L.J. 197, 230–34 (2003); Stephanie Roberts Hartung, Missing the Forest for the Trees: Federal Habeas Corpus and the Piecemeal Problem in Actual Innocence Cases, 10 Stan. J.C.R. & C.L. 55, 61–62 (2014); Joseph M. Bowman, Note, Processing a Motion Attacking Sentence Under Section 2255 of the Judicial Code, 111 U. Pa. L. Rev. 788, 800–02 (1963). As these titles suggest, most prior scholarship addresses innocence claims specifically rather than post-conviction relief more generally. ↑

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