The Withered Writ: Habeas Corpus, the Age-Old Means for Prisoners to Challenge Their Detention, Has Never Been More Restricted Than It Is Now

Article excerpt

The writ of habeas corpus, until not long ago, was a mysterious yet potent safeguard of liberty in American law. It worked like an incantation to break an evil spell. A prisoner petitions a court for a writ. "Habeas corpus" means "May you produce the body," spoken from the point of view of a judge. He orders whoever is depriving the prisoner of his freedom to bring him to court--a warden confining a prisoner, the secretary of defense holding a detainee, or a magistrate who has denied bail to someone jailed but not convicted--and to justify the detention. The judge then decides whether the petitioner is being detained in breach of the Constitution or some other law.

In 1963, Justice William Brennan Jr. wrote that "government must always be accountable to the judiciary for a man's imprisonment." The prisoner is "entitled to his immediate release," the justice emphasized, if the government violates the law in putting him behind bars. Brennan was one of the most influential justices of the 20th century. A champion of the individual versus the government--in what he called "the unceasing contest between personal liberty and government oppression"--he led the Supreme Court to strengthen American democracy by strengthening various roles of citizens, to minimize those clashes. That included bolstering the First Amendment so people could be confident about criticizing officials without getting sued, adopting the principle of "one person, one vote" so each vote would have equal weight, and enhancing the power of federal courts and citizens' access to them to protect these and many other rights.

He embraced habeas corpus as part of that enhancement--as a crucial tool for the protection of constitutional rights. Following his lead, the Warren Court expanded habeas law to redress appalling treatment by many states of criminal defendants, especially minorities and the poor, who had often experienced unfair arrests, been coerced into confessions, and received unjust trials.

Habeas became, above all, a tool for challenging death sentences. Robust habeas law protects death-row inmates from a kind of vigilantism carried out in state courts--particularly inmates whose crimes were experienced as an outrage not just against the victim but also against the community. The idea was to give the petitioner access to the safe harbor of a federal court.

By expanding habeas law, the Supreme Court empowered the hundreds of federal trial courts to play an essential part in making sure state and local governments were complying with the Constitution. Since the Judiciary Act of 1867 made habeas corpus available in federal court to state prisoners who claimed their rights had been violated, the writ has been pushed and pulled in the persistent American debate about the balance of power between the national government and the states.

In Brennan's view, the federal courts had the ultimate responsibility to defend the Constitution. No state's denial to an individual of constitutional rights could become final without that review--especially state criminal decisions that deprived someone of his liberty and possibly his life. No statute of limitations cuts off an individual's access to a habeas writ because, the Supreme Court said, there is no higher duty than to maintain the writ unimpaired. For that reason, a petitioner's failure to persuade a federal trial court to grant a writ did not keep him from applying for one again.

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The Constitution explicitly limits the power of Congress to suspend the right to habeas. In doing so, Brennan believed, the Constitution underscores the importance of the writ and its role as a check on government. He declared that "the Constitution invites, if it does not compel, a generous construction of the power of the federal courts" to grant what he, like others going back to this country's founding, reverentially called the Great Writ.

Today, federal law governing habeas corpus makes Brennan's view seem antique. …