Habeas Corpus: Rethinking the Great Writ of Liberty

Introduction

Introduction In legal terms, habeas corpus is simply the name for the procedure by which a court inquires into the legality of a citizen’s detention. But habeas corpus is rarely discussed in merely legal terms. The name carries a special resonance in Anglo-American legal and political history: habeas corpus is universally known and celebrated as the “Great Writ of Liberty.” The reason is straightforward. The availability of habeas corpus means that if an individual is found to have been imprisoned unlawfully the court can release him or her, thus enforcing the rule of law and frustrating governmental oppression. Attempts to extend the range and efficacy of the writ have accordingly been inseparably connected for centuries with attempts to secure justice for those who at any particular moment find themselves execrated by the dominant forces in society. In America, when a state prisoner files a petition in federal court challenging his or her criminal conviction, the federal court must decide, in the words of the federal habeas corpus statute, whether the prisoner is being held “in custody in violation of the Constitution or law or treaties of the United States.”1 Thus, federal habeas corpus is closely linked to federalism—which our history has sometimes rightly understood as a device for insuring liberty by dispersing power, and sometimes misunderstood as an excuse for inaction in the face of injustice. Federal habeas corpus insures that, even though the Supremacy Clause of the Constitution already requires state courts to give criminal defendants every protection of the Bill of Rights and federal law,2 those defendants are also entitled to insist that a federal court review the state court proceedings.3 In the context of the history, government, and public passions of the United States—especially with respect to the death penalty—this system of dual safeguards makes sense, implementing the fundamental, and mutually consistent, conceptions of individual liberty and constrained government power that underlie the Constitution. 1 Those who would limit federal court review of state prisoner convictions, whose views currently find expression in the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA),4 too often seek to defend injustice on the basis of federalism—thereby undermining both federalism and justice. And, hitherto, they have often based their arguments on a misapprehension of the Supreme Court’s landmark cases. The principal purpose of this book is to rectify three such errors that have for too long obscured the historical record. Part I takes up the 1807 case of Ex Parte Bollman.5 The Suspension Clause of the Constitution provides: “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.”6 In considering the scope of the Clause, the Court and scholars alike have unanimously proceeded on the assumption that the Clause did not originally cover state prisoners seeking a federal writ of habeas corpus. The basis of this assumption is that, according to language in the Bollman opinion, which Chief Justice John Marshall delivered in the course of 2 | Introduction Figure 1 Typical State and Federal Trial and Postconviction Procedure UNITED STATES SUPREME COURT (certiorari) HIGHEST STATE HIGHEST STATE U.S. COURT OF COURT COURT APPEALS (appeals procedure varies) (appeals procedure varies) INTERMEDIATE STATE INTERMEDIATE STATE APPEALS COURT APPEALS COURT (appeals procedure varies) (appeals procedure varies) (appeal as of right after initial showing of merit) TRIAL COURT TRIAL COURT U.S. DISTRICT COURT TRIAL, SENTENCING, STATE FEDERAL AND DIRECT APPEAL POSTCONVICTION HABEAS CORPUS releasing several of Aaron Burr’s coconspirators, Section 14 of the Judiciary Act of 17897 did not give federal courts the authority to grant the writ to state prisoners; hence, it was unavailable to those prisoners. Since the First Judiciary Act is a cornerstone of American jurisprudence (and the idea that it might violate the Suspension Clause has thus been deemed most implausible), acceptance of Marshall’s interpretation has served as conclusive evidence for the proposition that the right of state prisoners to obtain federal habeas corpus was not originally protected by the Constitution. But, I argue, Marshall’s interpretation of the act was wrong, and so is any interpretation of the Suspension Clause based upon it. Since the Constitution came into force, the federal courts have had the authority to free state prisoners on habeas corpus, and the Suspension Clause applies as a matter of original intent to...