Reclaiming the Equitable Heritage of Habeas

49 Pages Posted: 12 Feb 2013

Date Written: February 11, 2013


Equity runs through the law of habeas corpus. Throughout the seventeenth and eighteenth centuries, prisoners in England sought the Great Writ primarily from a common law court — the Court of King’s Bench — but that court’s exercise of power to issue the writ was built around equitable principles. Against this backdrop, it is hardly surprising that modern-day habeas law draws deeply on traditional equitable considerations. Criticism of current habeas doctrine centers on the risk that its rules — and particularly the five gatekeeping doctrines that preclude consideration of claims — produce unfair results. But in fact four of these five bars exhibit significant equitable characteristics. The only outlier is the Court’s retroactivity bar, which prohibits relief whenever an applicant relies on a new rule of constitutional procedure. Taking no account of the blamelessness of the applicant’s conduct or the nature of the claim, the law of retroactivity applies in a wooden fashion that is at odds with principles of equity.

The nonequitable nature of the retroactivity bar causes both individual and institutional harms. Of particular importance, because it operates irrespective of how compelling the individual claim of error may be, it blocks the opportunity to secure relief on claims in approximately one quarter of all capital cases. The nonretroactivity rule also thwarts the efforts of courts to recognize new rights applicable to collateral proceedings, no matter how sound such new rights might be.

This Article argues that the Court should modify its nonretroactivity doctrine to reflect equity’s traditions. In particular, the Court should adopt three individualized equitable exceptions to the now-absolute retroactivity bar that take account of applicants’ conduct in pursuing claims, the merits of the claim and the stakes involved, and the unavailability of alternative remedies. These exceptions might not alleviate all of the inequities created by the nonretroactivity rule. They would, however, bring it more in line with its four companion habeas bars, providing a measure of coherence to these gatekeeping doctrines and reconnecting the nonretroactivity rule with the writ’s deep equitable roots.

Suggested Citation

Hashimoto, Erica J., Reclaiming the Equitable Heritage of Habeas (February 11, 2013). Available at SSRN: or

Erica J. Hashimoto (Contact Author)

University of Georgia School of Law ( email )

225 Herty Drive
Athens, GA 30602
United States

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