The Nation: The Gutted Writ: Habeas Corpus

[Jim__]

There is a somewhat long, but interesting, article in the Nation on habeas corpus. A short excerpt:

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In conventional criminal law, the United States is unique in using habeas corpus primarily as a postconviction remedy. Invoking the writ successfully has never been easy, as the case of Wilbert Rideau makes clear. Nevertheless, postconviction habeas developed into an important alternative to direct appeals and as a mechanism of equity relief, especially in death penalty and civil rights cases. During the divisive crime debates of the 1990s, however, Congress passed the Antiterrorism and Effective Death Penalty Act (AEDPA), which put habeas petitions beyond the reach of all but the most capably represented and egregiously wronged criminal detainees. Extending legalistic restrictions already imposed by the Rehnquist Court, the law requires prisoners to exhaust all state remedies before turning to federal court, limits the ability of federal judges to question the decisions of trial courts and imposes various administrative burdens on petitioners, including strict deadlines for initial filings—all of which add up to insurmountable barriers for most inmates, who tend to be indigent, poorly educated and unrepresented by counsel. "AEDPA has been awful for criminal defendants," says Vanita Gupta, an ACLU attorney who under more forgiving state rules famously helped overturn a host of wrongful drug convictions in Tulia, Texas. "Its onerous, lawyerly demands and blanket restrictions have created a morass of litigation and severely curtailed the reach of the Great Writ." Even as America's prison population has swollen to an unparalleled size, a key conduit for release has thus been shut off, in effect rendering the country's first civil right an inaccessible right. As during the repressive ascendance of the British Empire, lawmakers in the United States have "bound the judge and muffled the prisoner's sighs."

Halliday's history of setbacks and shortcomings is indeed discomfiting. "Beginning with royal power" and ending with "detention of people on a scale that defies judiciousness," his book suggests that the "idea of habeas corpus"—that no person shall be detained except by due process of law—"has been more powerful outside of courtrooms than inside them." Yet his book is not without hope. Halliday shows how innovative and persistent judges turned an instrument of the king's prerogative into a "writ of majestic, even equitable, sweep" and managed, in some cases at least, to defend it against "a legislative onslaught on liberties of every kind." In thwarting the Bush administration's absolutist leanings, the Supreme Court has recently shown glimmerings of that same independence, but the results remain unclear. In the twenty-first century, habeas corpus can be as vital for the protection of individual liberties as it was in the seventeenth, but courageous judges—precisely the sort excoriated by Scalia—will have to make it so.