The Erosion of the Great Writ

Judicature, September/October 2005 | Go to article overview

The Erosion of the Great Writ


The Streamlined Procedures Act, now before Congress, is the latest attempt in an ongoing effort to cripple federal habeas jurisdiction.

March 18, 1963 may have been the high water mark for the writ of habeas corpus, the so-called Great Writ. On that day, the Supreme Court considered the habeas petitions of Clarence Earl Gideon and Charles Noia and, in Gideon v. Wainwnght and Fay v. Noia, established important safeguards for indigent defendants and personal liberty. In Noia, the Court concluded that Mr. Noia's continued incarceration was an affront to the "conscience of a civilized society," when it was revealed that his confession-the sole bit of evidence against him-had been obtained by police brutality. Even more important, the Court, after a long review of the history of the Writ, concluded that "[o]ur survey discloses nothing to suggest that the Federal District Court lacked the power to order Noia discharged because of a procedural forfeiture he may have incurred under state law. On the contrary, the nature of the writ at common law, the language and purpose of the Act of February 5, 1867, and the course of decisions in this Court extending over nearly a century are wholly irreconcilable with such a limitation."

Since then, however, the courts and Congress have eroded the impact of the Great Writ, reducing it to a network of procedural hurdles for indigent defendants, frequently unaided by counsel, seeking to challenge the constitutionality of their convictions or sentences in federal court. And although Gideon sparked the "right to counsel revolution," and Noia hailed the Great Writ as the most important protection for personal liberty against intolerable government restraint, those pronouncements now languish in the recesses of memory. Dissenting in Stone v. Powell, Justice Brennan remarked in 1976 that "[t]he groundwork is being laid today for a drastic withdrawal of federal habeas jurisdiction," and his words proved prophetic; within two decades of that decision, the Court in a series of decisions rolled back federal habeas protections nearly to pre-Noia levels.

Congress, too, bears responsibility for the demise of this historic check on government overreaching. Less than 10 years after the Anti-Terrorism and Effective Death Penalty Act of 1996 (AEDPA) created a statutory maze of obstacles to habeas relief, another chillingly titled bill of the same tenor, the Streamlined Procedures Act (SPA), is currently wending its way through the legislative process.

Introduced in both the Senate and the House, the SPA goes even further than the AEDPA to destroy the Great Writ. It includes a provision that removes jurisdiction from federal courts to consider claims that a state court refuses to hear because of a procedural error. …

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