Who Killed Habeas Corpus?

Abstract

This article discusses the recent history of the writ of habeas corpus, once known as the Great Writ of Liberty, and concludes that the end result has been tragic. Because of unwise decisions made by all three branches of government, Congress, the President, and the Supreme Court, the writ has largely been destroyed as an effective remedy for individuals who are imprisoned as a result of a violation of their federal constitutional rights by a state court. The article notes that under Chief Justices Burger and Rehnquist the Supreme Court established a number of restrictions on the right of state prisoners to obtain federal habeas review. Then, in 1996, a Republican Congress passed an extremely repressive bill entitled the Anti-terrorism and Effective Death Penalty Act (“AEDPA”) that imposed additional restrictions on the Great Writ. Particularly objectionable are provisions requiring federal courts to defer to erroneous but reasonable state court interpretations of the Constitution and barring federal courts from relying on any authority other than clearly established Supreme Court precedent. Sadly, over the objections of habeas scholars, civil libertarians, and his own counsel, President Clinton signed the bill into law. Since then, the Supreme Court has consistently interpreted the law so as to make it even more harmful to prisoners seeking to overturn unconstitutionally obtained state convictions. The article contends that the loss of habeas corpus is profound because the writ is urgently needed. This is so because, as state judicial elections have become increasingly contested, increasingly partisan, and increasingly well-financed, it is increasingly difficult for state court judges, who unlike federal judges do not have life tenure, to protect criminal defendants’ constitutional rights. As a result, too many people spend too many years in prison as a result of convictions involving violations of their constitutional rights.