A Structural Vision of Habeas Corpus

California Law Review, Vol. 98, 2009-2010

59 Pages Posted: 2 Mar 2009 Last revised: 20 Jan 2017

Date Written: February 28, 2010


For decades, scholars and judges have assumed that federal habeas corpus review of state court criminal convictions should focus on the individual rights of habeas petitioners and that the federal courts should ask whether a state prisoner is being unlawfully detained because the state violated his individual federal rights. This individualized approach to federal habeas review is expensive, time-consuming, and woefully ineffective in stopping states from violating defendants' federal rights. Indeed, many states systematically violate criminal defendants' federal rights with impunity. This Article proposes a new conception of federal habeas review under which the federal courts focus on states, not on individual petitioners. Federal habeas relief should be available when a state routinely violates its criminal defendants' federal rights as part of a systemic practice. Reconfiguring federal habeas corpus review to focus on states and systemic practices would reduce redundancy, increase efficiency, and be more respectful of state institutions while, at the same time, recovering one of the original and now lost purposes of federal habeas corpus review.

Keywords: habeas corpus

Suggested Citation

Primus, Eve Brensike, A Structural Vision of Habeas Corpus (February 28, 2010). California Law Review, Vol. 98, 2009-2010, Available at SSRN: https://ssrn.com/abstract=1351495 or http://dx.doi.org/10.2139/ssrn.1351495

Eve Brensike Primus (Contact Author)

University of Michigan Law School ( email )

625 South State Street
Ann Arbor, MI 48109-1215
United States

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