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Habeas corpus is shorthand for a variety of writs or legal pleadings seeking to bring a person within a court’s power. Of the many habeas corpus writs, the most celebrated and significant is the writ of habeas corpus ad subjiciendum, the ‘‘Great Writ,’’ which requires an official or person who holds another in custody to produce the person so that a court can inquire into the legality of the detention. In contemporary practice, this writ is most commonly used to challenge the legality of criminal convictions and sentences, though it is also used to challenge the legality of pretrial detentions and the legality of custody in other settings, including immigration, mental health, and military contexts. Other habeas writs are available for distinct purposes, such as to make a prisoner available to testify in court (ad testificandum) or to ensure that a prisoner is brought before the proper court for prosecution (ad prosequendum).
Origins and History
Habeas corpus in its most familiar form (ad subjiciendum) has played an important role in Anglo-American history as a safeguard of individual liberty. Indeed, the availability of habeas relief was at the center of the struggle between Crown and Parliament in the seventeenth century, when Parliament objected to lawless detentions for which no judicial remedies were forthcoming. Infamous deprivations of liberty led to extensive criticism and protest, as English citizens were often held for significant periods without trial and without recourse. Ultimately, Parliament prevailed with the enactment of the Habeas Corpus Act of 1679, which specifically authorized (indeed, required) habeas relief under certain circumstances with substantial penalties for noncompliance.
The English protection of the writ of habeas corpus was quite influential during the framing period of the United States, with both states and the federal government adopting statutory and constitutional guarantees of the writ. Indeed, the federal constitutional guarantee prohibiting the suspension of habeas corpus is one of only two federal constitutional provisions that explicitly refers to and protects a particular remedy (‘‘the Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it’’ (Art. I, §9)).
Constitutional Protection of The Writ of Habeas Corpus
One central question surrounding the suspension clause concerns the nature and scope of its protection. As an initial matter, the clause does not declare that the writ of habeas corpus must be made available (as was proposed but not adopted during the constitutional convention), but rather suggests that once established it cannot be withdrawn (barring rebellion or invasion). In Ex Parte Bollman, 8 U.S. (4 Cranch) 75 (1807), Chief Justice Marshall nonetheless suggested that Congress’s creation of habeas jurisdiction in the Judiciary Act of 1789 was likely the result of its perceived ‘‘obligation’’ to give ‘‘life’’ to the constitutional provision. Under Chief Justice Marshall’s reasoning, the clause protects federal judicial power to grant writs of habeas corpus, though many scholars have argued that the clause was intended to protect state judicial power from federal intervention. When a state court sought to secure the release of an abolitionist who had been convicted in a federal proceeding of aiding and abetting a fugitive slave, the Court decisively rejected the notion that state habeas enjoys any federal constitutional protection, insisting instead that state courts lack power to interfere with persons imprisoned under the authority of the federal government (Ableman v. Booth, 62 U.S. (21 How.) 506 (1858)). That Congress appears to have initially extended the writ to federal prisoners alone suggests that the suspension clause, at least as an initial matter, was not understood to afford protections to persons held in state custody; recent scholarship, though, challenges the notion that the Judiciary Act of 1789 should be understood to have deprived federal courts of habeas power with respect to state prisoners.
During the early nineteenth century, Congress gradually extended the scope of federal habeas jurisdiction to certain classes of state prisoners in response to specific threats to federal power. When South Carolinians declared federal tariffs unconstitutional at the climax of the nullification controversy, President Andrew Jackson feared that federal officers seeking to enforce the tariffs would be subject to state interference. On President Jackson’s initiative, Congress authorized federal judges to exercise habeas jurisdiction in cases involving federal or state prisoners confined for acts committed in pursuance of federal law. Less than a decade later, following a diplomatic crisis that ensued when New York tried a British citizen who had attempted to prevent American assistance to Canadian rebels during the winter revolt of 1837–1838, Congress again expanded federal habeas jurisdiction to permit federal review of cases involving federal or state prisoners who are subjects or citizens of a foreign state.
The most significant statutory expansion of the writ occurred in the wake of the Civil War. The Judiciary Act of 1867 extended the writ to all persons, federal or state, restrained of liberty in violation of federal law. Today, the term ‘‘federal habeas’’ is invariably used to describe challenges by state prisoners, as federal habeas jurisdiction for federal prisoners has essentially been replaced by a separate comprehensive federal postconviction scheme whose substantive scope is basically congruent with the habeas remedy that it displaced (28 U.S.C. § 2255).
An additional question surrounding the suspension clause concerns which branch of government can withhold the writ in response to rebellion or invasion. This question took on great significance at the beginning of the Civil War. Just over two weeks after shots were fired on Fort Sumpter, President Abraham Lincoln issued an order to Commanding General Winfield Scott permitting him to suspend the writ. When John Merryman was subsequently arrested for his participation in the destruction of bridges in Baltimore, military officials refused to respond to a writ before Chief Justice Taney. The Chief Justice wrote a scathing opinion denying the legality of President Lincoln’s purported suspension (Ex parte Merryman, 17 F. Cas. 144 (C.C.D. Md. 1861) (No. 9487)), arguing that it is Congress and not the president in whom the Constitution vests such power. President Lincoln publicly disagreed with the opinion (and did not honor it), and Congress subsequently declared its retroactive approval of President Lincoln’s military actions. In 1863, Congress also specifically authorized President Lincoln to suspend the writ whenever in the course of the ‘‘present rebellion’’ he judged it to be necessary.
The Scope of Federal Habeas Corpus
The most controversial question surrounding federal habeas corpus concerns its appropriate role. This question has two components: how has federal habeas corpus functioned historically and how should it function today? The English version of the writ secured by the Habeas Corpus Act of 1679 primarily afforded a mechanism for challenging unauthorized pretrial detentions. The earliest habeas practice in the United States, both state and federal, likewise focused on defendants’ rights against warrantless detentions and denials of bail. But throughout the nineteenth and early twentieth centuries, prisoners sought, and in some cases received, habeas review of claims challenging criminal convictions.
Scholars disagree about the scope of federal habeas review during this period. One prominent scholar, Professor Paul Bator, famously insisted that federal habeas was simply not available to persons convicted by courts of competent jurisdiction; though federal habeas courts sometimes entertained an expansive conception of ‘‘jurisdiction,’’ on Bator’s view federal habeas was not generally a forum for revisiting legal or factual determinations after trial.
More recent scholarship asserts that federal habeas has always permitted some postconviction review of federal constitutional claims. One of the leading treatise authors on federal habeas, Professor James Liebman, maintains that the scope of federal habeas review during the nineteenth and early twentieth centuries was intimately connected to the availability of other forms of federal review of federal claims. On this view, the U.S. Supreme Court continually adjusted the scope of habeas review in both the state and federal prisoner cases based on whether some other federal jurisdictional vehicle was available to address substantial federal claims. In the federal prisoner context, for example, this thesis explains why the scope of federal habeas for federal prisoners diminished after Congress established federal appellate review of criminal convictions in 1891. In the state prisoner context, this account explains why the scope of habeas corpus increased when federal review as of right through writ of error became largely discretionary.
Yet another influential view argues that federal habeas review has always been quite broad, but that state prisoners rarely prevailed because of the narrowness of federal constitutional protections. According to this position, denials of habeas relief in landmark cases such as Frank v. Magnum, 237 U.S. 309 (1915), in which the Court rejected a claim of mob domination and jury intimidation at trial, were predicated on the Court’s narrow readings of the due process clause. Frank lost, on this view, not because the Court refused to consider the merits of his constitutional claim via federal habeas, but because, as a matter of due process, state-court review of a mob-domination claim was constitutionally sufficient. Hence, when federal constitutional protections for state prisoners increased dramatically during the 1960s, the significance of federal habeas increased as well, and not necessarily because the nature of federal habeas itself had been altered.
The dispute surrounding the historic role of federal habeas is not merely academic. Although habeas corpus has both statutory and constitutional roots, the Court has repeatedly focused on historical practice in deciding the appropriate reach of the writ. Indeed, in a much-publicized decision concerning the scope of federal habeas review, two factions of the Court offered conflicting historical accounts to support their respective views as to whether federal habeas courts should defer to state court determinations of mixed lawfact determinations (Wright v. West, 505 U.S. 277 (1992)).
The Emergence of Modern Federal Habeas Corpus
By the mid-twentieth century, the Court cemented federal habeas’s role as a vehicle for challenging the lawfulness of state criminal convictions (Brown v. Allen, 344 U.S. 443 (1953)). Most importantly, the Court indicated that state court legal determinations were not binding on federal habeas courts, and that such courts should address federal constitutional claims de novo.
At the time Brown was decided, federal habeas review remained quite limited, because few federal constitutional protections had been extended to state prisoners. But during the 1960s, the Court ‘‘constitutionalized’’ criminal procedure and read the due process clause of the Fourteenth Amendment to encompass virtually all of the protections of the Fourth, Fifth, Sixth, and Eighth Amendments. In addition, the Court adopted relatively lenient rules concerning state procedural defaults. The Court characterized federal habeas review as an independent civil action rather than as a formal appeal of a state court judgment and refused to apply the independent and adequate state ground doctrine to bar procedurally defaulted claims on federal habeas. Instead, the Court held that if a state inmate failed to properly raise a federal constitutional claim in state court, the issue would nonetheless be cognizable on federal habeas unless the inmate had deliberately bypassed state procedural rules (Fay v. Noia, 372 U.S. 391 (1963)). As a result, federal habeas increasingly became a robust forum for vindicating the federal constitutional claims of state prisoners. Not surprisingly in light of these developments, the sheer volume of federal habeas petitions grew dramatically in the four decades following Brown. Although Justice Jackson had complained of a ‘‘haystack’’ of federal habeas petitions in Brown, the 541 petitions filed in 1951 had become 12,000 by 1990.
Relationship of Federal Habeas to State Postconviction
The availability, scope, and significance of state postconviction review has changed dramatically over the past half century. Prior to the 1950s, state postconviction remedies consisted almost entirely of common law writs, most prominently habeas corpus and coram nobis. These writs did not generally afford state inmates a meaningful opportunity to adjudicate federal constitutional issues.
State habeas corpus, like its federal counterpart, had originally served primarily as a vehicle for challenging pretrial or extrajudicial detentions. When state inmates invoked habeas to challenge their continued detention after conviction, state courts did not view the writ as a basis for revisiting every legal issue bearing on the conviction. Rather, state courts often described their inquiry as confined to ‘‘jurisdictional’’ questions and they repeated the black letter rule that habeas relief was available only if the challenged conviction was not merely ‘‘voidable’’ but absolutely ‘‘void.’’ The jurisdictional limitation rendered state habeas an unpromising means of addressing federal constitutional claims because such claims were not ordinarily thought to undermine the basic authority of the trial court to conduct the proceedings leading to the challenged conviction.
Coram nobis, on the other hand, was the traditional postconviction mechanism for revisiting convictions based on non-record facts. Coram nobis was available in the court of conviction— not in a reviewing or appellate court—and it did not generally extend to pure legal error. Moreover, coram nobis did not afford relief unless the newly found facts would have resulted in a different judgment. Accordingly state coram nobis remedies also seemed an unlikely means of vindicating federal constitutional rights.
The problem of state enforcement of federal constitutional rights, though, was not simply a matter of putting ancient writs to modern uses. In the first half of the century, states seemed less than zealous in protecting defendants’ rights. Perceived state hostility to federal rights and irregularities in state criminal procedures— including the absence of effective postconviction review—no doubt encouraged federal courts to review state convictions for constitutional error through federal habeas corpus.
As federal habeas review of federal constitutional claims became more common and intrusive with the Warren Court’s extraordinary expansion of due process rights for state prisoners, states had strong incentives to develop more extensive postconviction procedures. These procedures protected state convictions from federal review in two important respects: first, state factfinding in postconviction would ordinarily earn deference in federal court, allowing state courts to shape the future federal habeas litigation; second, additional postconviction opportunities for state prisoners meant additional opportunities to enforce state procedural rules, leading to increased forfeitures in federal court.
The expansion of state postconviction review, though welcome in some respects, has unfortunately also delayed federal habeas review of federal claims. Of course, some delay is unavoidable if state courts are to assume initial responsibility for adjudicating federal rights; if states fail to provide a forum for non-record claims, inmates must litigate these claims in the first instance on federal habeas. But state postconviction review also delays federal review of record claims that could be fully adjudicated in the state courts on direct appeal (without any additional recourse to state postconviction). Delays between state court resolution and federal habeas resolution of record claims contributes to the perception—and reality—that federal habeas undermines the finality of state convictions.
Overall, the dynamic interplay between federal habeas and state postconviction has produced a tremendously burdensome system for reviewing federal claims. Concerns about the adequacy of state criminal justice systems led to the recognition of federal constitutional rights and the expansion of the federal remedy of habeas corpus. Robust federal habeas in turn led to widespread adoption of extensive state postconviction proceedings, primarily to limit intrusive federal court review. The introduction of extensive state postconviction proceedings substantially delays federal review of federal claims and increases the costs of ultimately granting relief in federal court. Recognizing these costs, Congress and the Court have in recent years erected labyrinthine obstacles to merits review on federal habeas.
The Proceduralization of Federal Habeas Corpus
Just as the Warren Court’s ‘‘revolution’’ of criminal procedure became a target of extensive criticism, federal habeas’s role in implementing the revolution also came under attack. Some critics argued that federal habeas had become excessively intrusive on legitimate state interests, notably the finality of state criminal convictions and comity for state courts. Other critics noted that the habeas remedy had strayed far from its historic common law roots as primarily a pretrial remedy. Despite regular efforts to limit federal habeas legislatively in the three decades after Brown, though, Congress refused to enact any meaningful habeas reform.
Nonetheless, the Supreme Court took the lead in reshaping and restricting the scope of the habeas forum. First, the Court imposed stricter rules governing procedural defaults, shifting the burden to petitioners to justify failing to comply with state procedural rules. These strict rules applied even in capital cases, with the result that a death-row inmate could lose all federal review of his constitutional claims based on his attorney’s filing a state habeas appeal three days late (Coleman v. Thompson, 501 U.S. 722 (1991)). In addition, the Court adopted more onerous requirements for filing both same-claim and new-claim successive habeas petitions, essentially limiting state prisoners to one opportunity to litigate federal claims—not one opportunity to litigate each federal claim—in federal court even if new facts or new law subsequently confirmed or revealed additional constitutional violations.
Perhaps the most significant Court-initiated reform concerned its limitation on the retroactive availability of ‘‘new’’ constitutional law on federal habeas. Prior to the mid-1960s, the Court drew no important distinctions between inmates’ claims seeking the benefit of new law and those seeking vindication of clearly established or longstanding constitutional doctrines. All decisions enforcing the constitutional rights of criminal defendants were simply presumed to have full retroactive effect. But the unprecedented expansion of criminal defendants’ rights after the incorporation decisions prompted the Court to limit the impact of the growing constitutional criminal protections. At first, the Court adopted a balancing test that led to the retroactive application of some but not all of the new constitutional decisions. More recently, the Court adopted a presumptive rule prohibiting petitioners from seeking the benefit of new law on habeas; under the Court’s approach, a federal habeas petitioner can avoid the nonretroactivity bar against newlaw claims only if the rule sought (or established in a recent decision) renders the underlying conduct of the petitioner unpunishable or represents a ‘‘watershed’’ contribution to the criminal justice system that substantially increases the reliability of the guilt-innocence determination (Teague v. Lane, 489 U.S. 288 (1989)).
The nonretroactivity doctrine has been of extraordinary practical significance. The Court’s expansive conception of ‘‘new’’ law, which focuses on whether a petitioner’s claim was ‘‘clearly dictated’’ by prior precedent, has blocked retroactive application of many decisions far less dramatic or path-breaking than the Warren Court rulings that had given rise to the doctrine. At the same time, courts have construed the exceptions quite narrowly. Few new rules prohibit states from punishing certain conduct at all, and, in the numerous retroactivity cases litigated at the Supreme Court level, the Court has declined to identify any new rule as sufficiently fundamental to command retroactive application.
By the early 1990s, the Court’s procedural default, successive petition, and nonretroactivity decisions had significantly eroded state inmates’ efforts to receive federal review of the federal lawfulness of their convictions via federal habeas corpus. In addition, the infamous 1995 bombing of the Alfred P. Murrah Federal Building in Oklahoma City led Congress to substantially revisit the scope of federal habeas review for the first time in over 125 years. The resulting legislation, the Anti-Terrorism and Effective Death Penalty Act (AEDPA), was signed within days of the first anniversary of the Oklahoma City bombing. Whereas the previous habeas statute had extended the writ to all persons held in violation of the Constitution or laws or treaties of the United States, the AEDPA additionally requires that the challenged state adjudication ‘‘resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States’’ (28 U.S.C. §2254(d)). The Court has recently construed this language as replacing the de novo standard articulated in Brown (Williams v. Taylor, 526 U.S. 1050 (1999)). According to the Court, this language requires federal habeas courts to sustain ‘‘reasonable’’ but ‘‘wrong’’ state court adjudications of federal rights. In addition, the AEDPA imposes a new limitations period on filing federal habeas petitions and further cuts habeas review of successive petitions.
The Court-initiated procedural obstacles to habeas review, together with the new ‘‘reasonableness’’ standard of review of the AEDPA, have transformed federal habeas into an enormously complex forum. Instead of debating whether a state prisoner’s conviction or sentence violates federal constitutional norms, the parties and federal courts devote extraordinary resources attempting to resolve questions of procedural default, retroactivity, and the ‘‘reasonableness’’ of state court decision-making. In some respects, the current scope of federal habeas for state prisoners could be viewed as a compromise between advocates of federal supervision over state criminal processes and defenders of state autonomy. The compromise protects the fundamental jurisdictional power of the federal courts to review unconstitutional convictions of state prisoners. Yet the compromise increasingly saddles such jurisdiction with arcane and often insurmountable procedural barriers. For many critics, this state of affairs should be lamented because it sustains the appearance of extensive federal supervision of federal rights despite the reality of truncated and increasingly limited review.
Habeas Corpus and Capital Punishment
The enormous growth of procedural obstacles on federal habeas, as well as the new limitations period established in the AEDPA, have made it extremely difficult for unrepresented petitioners, acting pro se, to receive federal review of their constitutional claims. As a result, the bulk of meaningful federal habeas litigation now involves death-sentenced inmates, for whom Congress recently established a statutory right to counsel on federal habeas. Death-row petitioners often focus their habeas litigation on the federal lawfulness of state death penalty procedures. When the Court first subjected state death penalty schemes to federal constitutional scrutiny in the early 1970s, the popular perception was that the Court was deciding the constitutional rightness or wrongness of the death penalty as a punishment. In 1976, the Court made clear that the death penalty was a permissible punishment so long as states developed adequate systems for ensuring its reliable and equitable administration.
The notorious subsequent history reveals the development of extremely intricate, difficult-toapply doctrines that have plunged states and petitioners into a morass of confusing litigation concerning states’ obligations in their administration of the death penalty. This litigation eventually arrives in federal court with the result that federal habeas has become less a broad forum for enforcing the federal rights of state prisoners generally than the inevitable battleground for enforcing or overturning state death sentences and elaborating the meaning of the Eighth Amendment in capital cases. The drafters of the AEDPA undoubtedly understood this when they equated ‘‘effective death penalty’’ with diminished federal habeas corpus.
The role of federal habeas in supervising state death penalty schemes has also prompted a reexamination of the scope of habeas review. Throughout American legal history, as a matter of black letter law, federal habeas could not serve as a forum for relitigating the accuracy of criminal convictions. But death-row inmates insisted that the difference in kind between capital punishment and imprisonment should require federal habeas relief where extremely strong evidence of actual innocence surfaces after trial and the state courts refuse to provide any posttrial mechanism for evaluating new evidence of innocence. In making this argument, capital defense lawyers borrowed from Judge Henry
Friendly’s influential article insisting that innocence should not be irrelevant to the availability of federal habeas review. But whereas Judge Friendly focused on innocence as a limiting principle, to restore habeas to its purported roots as an exceptional remedy, advocates for capital defendants sought to establish actual innocence as a separate and independent basis for habeas relief. In a much-observed case, the Court ultimately denied habeas relief to a death-sentenced inmate whose only claim was his actual innocence of the crime (Herrera v. Collins, 506 U.S. 390 (1993)). But the Court’s decision ultimately turned on the petitioner’s lack of sufficient new evidence of innocence, and the Court did not dispositively rule on the cognizability of such ‘‘bareinnocence’’ claims.
The Future of Federal Habeas for State Prisoners
Federal habeas corpus for state prisoners is presently in a precarious position. For its critics, federal postconviction review of state criminal convictions is an unjustifiable intrusion into state criminal justice systems. Such review subjects state court decisions to review in the lower federal courts (as opposed to the U.S. Supreme Court) often years after trial. To this extent, current federal habeas corpus departs from the traditional norm of hierarchical appeals to a final court in a timely manner. Moreover, federal habeas review as a practical matter has become a vehicle for extensive federal intervention in state death penalty practices.
For its defenders, federal habeas provides the lone meaningful opportunity for federal courts to have the last say regarding the content of federal law. Recognizing that discretionary Supreme Court review is not a practical means of supervising state court compliance with federal constitutional norms, federal habeas serves as an essential surrogate to review by the Court.
As the Court and Congress impose new and substantial procedural obstacles to federal habeas review, there is less reason to believe that federal habeas will provide much incentive for state courts, in the famous words of Justice Harlan, ‘‘to toe the constitutional mark’’ (Mackey v. United States, 401 U.S. 667 (1971)). The increased proceduralization will also take federal habeas far from its origins as a broad means of inquiring into the lawfulness of custody. In his ringing dissent decrying the Court’s refusal to grant the writ in the face of a mob-dominated trial, Justice Holmes insisted that ‘‘habeas corpus cuts through all forms and goes to the very tissue of the structure’’ and ‘‘comes in from the outside, not in subordination to the proceedings, and although every form may have been preserved opens the inquiry whether they have been more than an empty shell’’ (Frank v. Mangum, 237 U.S. 309 (1915)). The future of federal habeas corpus will ultimately turn on whether federal enforcement of federal law is regarded as a desirable norm or an unnecessary and unjustified departure from state control over the federal rights of state prisoners.
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