Habeas Corpus (Update 2)

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The latin phrase "habeas corpus," literally translated as "produce the body," refers to a procedure in which persons held in custody by either the federal or state government may challenge their incarceration and/or sentence as unlawful. The person raising the challenge asks (or "petitions") a court to examine whether the custody or sentence is lawful. The relief sought—whether it be outright release, a new trial, or a change in the sentence—is in the form of a court order (or "writ").

Although Article I, section 9 of the Constitution refers to "[t]he privilege of the Writ of Habeas Corpus," it nowhere defines this right nor explains what circumstances will justify a court in granting a writ. Thus, the power of a federal court to issue a habeas corpus writ has always been defined by statute.

The first habeas corpus statute, the judiciary act of 1789, permitted federal courts to issue writs only with respect to federal prisoners. In the habeas corpus act of 1867, Congress first provided that federal courts could also issue writs with respect to state prisoners who were "restrained in violation of the constitution, or of any treaty or law of the United States.…" In 1966, Congress enacted a habeas corpus statute using language virtually identical to that used in the 1867 act.

During the 1960s, the liberal warren court issued a series of rulings that greatly expanded the constitutional rights of criminal defendants. In a parallel development, the court also expanded the power of the federal courts to remedy unconstitutional state court convictions by granting habeas corpus relief. The combination of developments had an immediate practical consequence; state prisoners increasingly began to seek relief in federal court for violations of their constitutional rights.

This trend was perhaps most evident in capital punishment cases. In 1976, the Supreme Court ruled that capital punishment was constitutional. In the decades since this ruling, habeas corpus became an extremely effective tool used by defense lawyers to prevent their clients from being executed.

With the expansion of rights in the 1960s, and with the increasing number of capital cases in the background, there was a reaction against the increasing use of habeas corpus to upset state court convictions. Many conservative jurists and scholars argued that grants of habeas relief imposed significant burdens on the criminal justice system and caused tensions between state and federal courts. A state conviction upheld by the state supreme court could be overturned by a single federal judge who finds a constitutional violation. This power undercuts the concept of finality in state court proceedings. Conservatives argue that such a system breeds frustration among victims of crime and contempt for the criminal justice system. They claim that state judges are every bit as competent as federal judges to determine whether the federal Constitution has been violated, and that determinations made in state court should be respected by federal judges. Those advocating this view place a heavy emphasis on the finality of state court convictions as well as fostering comity between state and federal courts.

Moderate and liberal scholars have a distinctly different emphasis. They point out that the state judges who initially assess constitutional violations are, in many cases, locally elected officials. In criminal cases generally, and capital cases specifically, community tensions often run high. Frequently, a ruling in a defendant's favor, particularly in a high-profile capital case, could be extremely unpopular and have devastating consequences on the career of a popularly elected official.

In Harris v. Alabama (1995), Supreme Court Justice john paul stevens examined statistics showing the startling frequency with which elected judges rule in favor of the state in capital cases. Stevens concluded that "[n]ot surprisingly, given the political pressures they face, judges are far more likely than juries to impose the death penalty." Because federal judges have lifetime tenure, their livelihood does not depend on maintaining the favor of an electorate. These judges, the argument goes, have a greater freedom to make decisions that may be unpopular. Those advocating this view are more concerned with the validity of a conviction in a particular case than with the more abstract notions of finality of state court convictions and comity between state and federal courts.

In light of these starkly different views of habeas corpus, it is not surprising that the conservative burger court and rehnquist court have reversed many rulings of the Warren Court and scaled back the power of federal courts to grant habeas relief. It is also not surprising that the debate over the appropriate role of habeas corpus has continued not only in the judicial branch, but in the legislative branch as well.

For many years conservative members of Congress sought to enact legislation that would curtail the ability of federal courts to grant habeas relief to persons in state custody. With the election of a Republican-controlled Congress in 1994, conservatives finally had an opportunity to pass this legislation. Motivated largely by concern over the increasing number of capital convictions found to be unconstitutional by federal courts throughout the country, Congress enacted the antiterrorism and effective death penalty act of 1996.

The act represents a massive revision of habeas corpus law. Although the act contains many new provisions— most of which have yet to be interpreted—two of its provisions stand out as stark departures from longstanding practice.

Initially, and for the first time ever, the new act imposes a time limit within which a prisoner must seek habeas corpus relief. Under the old law, there was no formal time limit, only equitable principles regarding delay. Federal courts took a flexible approach to the issue. If a prisoner showed a serious violation of his constitutional rights, relief could be granted years later so long as the delay was not unreasonable and did not prejudice the state in its ability to respond to the claimed constitutional violation.

The new act jettisons this flexible approach and imposes a strict one-year time limit within which prisoners must seek relief. In the typical case, the one-year time period begins to run from the date the state conviction is final on appeal. This provision—mainly fueled by concern over delays in capital cases—applies to both noncapital and capital cases. Thus, in cases where a state conviction is final on appeal, the prisoner must either seek relief within one year or potentially forfeit the right to seek relief. Moreover, because the vast majority of prisoners are indigent (and because there is no right to have a lawyer appointed to determine whether habeas relief is warranted), most prisoners with meritorious claims will forfeit their rights without even knowing they had any.

The second major change fashioned by the 1996 act appears to be an extraordinary departure from existing practice. At least as early as brown v. allen (1953), the Court had recognized that in deciding whether habeas relief was appropriate, federal courts were required to make an independent inquiry into the constitutionality of a particular conviction or sentence. The fact that a state court had passed on the question, and found no constitutional violation, was irrelevant. If the federal courts found that there was a constitutional violation, relief was appropriate.

Some lower courts have held that the new act alters this longstanding practice as well. According to this view, the new act requires federal courts to defer to the conclusions of state judges. Thus, even when a conviction is marred by a constitutional violation, relief is no longer permissible in most cases unless the state court's decision to the contrary was unreasonable. In other words, the new statute requires that state convictions be affirmed even though the state courts incorrectly concluded there were no constitutional violations, so long as the state courts were at least close.

As these provisions show, the new act reflects an approach to habeas corpus which exalts the finality of state court convictions and seeks to minimize the tension between state and federal courts. The cost of this approach is extreme; the act explicitly eliminates any remedy for many individuals who have convictions and sentences that are plainly unconstitutional. Whether this is merely the latest and most politically expedient balance of the conflicting concerns that have been at the heart of the habeas debate for decades, or a lasting alteration of the habeas corpus landscape, remains to be seen.

Cliff Gardner


Gardner, Cliff 1997 Litigating Habeas Cases Under the Antiterrorism and Effective Death Penalty Act of 1996: Retroactivity and Statutes of Limitations Questions. California Criminal Defense Practice Reporter 1997:441–446.

Liebman, James S. 1988 Federal Habeas Corpus Practice and Procedure. Chap. 2. Charlottesville, Virginia: Michie Co.

Note 1997 Rewriting the Great Writ: Standards of Review for Habeas Corpus Under The New 28 U.S.C. © 2254. Harvard Law Review 110:1868–1885.

Yackle, Larry W. 1996 A Primer on the New Habeas Corpus Statute. Buffalo Law Review 44:381–449.