How Congress Might Redesign a Leaner, Cleaner Writ of Habeas Corpus

Article excerpt

ABSTRACT

In the last thirty years, the Supreme Court and Congress have made the federal writ of habeas corpus increasingly less available to state prisoners. By and large, they have restricted the writ through the creation and expansion of procedural barriers to federal habeas review. Recently, however, the policy debate over how to handle the deluge of federal habeas petitions has begun to shift away from creating procedural hurdles and toward a more straightforward narrowing of the substantive scope of the writ, as Congress has started to consider bills that would preclude state prisoners from raising certain federal constitutional claims in their habeas petitions.

This Article examines how Congress might narrow the substantive scope of the writ of habeas corpus, should it ultimately decide to do so. The Article first considers the various criteria and the underlying theories of habeas that Congress might use to select the federal constitutional claims that would remain cognizable on habeas. The Article concludes that the best guide is a theory that accommodates both the historical role of habeas as a bulwark against fundamentally unfair incarceration and the current function of habeas as an additional "appeal" from state court. The Article then delineates which constitutional claims should remain available on habeas, and revisits the current procedural hurdles to see which may be eliminated or loosened. Finally, the Article briefly assesses the constitutionality of this new, narrower statutory writ.

INTRODUCTION

In the last thirty years, the Supreme Court and Congress have made the federal writ of habeas corpus increasingly less available to state prisoners.(1) By and large, they have restricted the writ by making it less available as a practical matter through the creation and expansion of procedural barriers to federal habeas review. They have rarely chosen to narrow the writ directly by limiting the types of federal constitutional claims that state prisoners can bring.(2) Indeed, the only two changes to the substantive scope of the writ have come from the Supreme Court, which in the last three decades eliminated habeas review of Fourth Amendment claims and claims premised on developments in the law arising after a prisoner's direct appeal is over.(3) Congress, by contrast, has not amended the language of the 1867 statute defining the writ for state prisoners. That statute continues to reach all cases where any person may be restrained of her liberty in violation of the Constitution, or in violation of any treaty or law of the United States.(4)

Recently, however, Congress has started to consider amending the statutory writ in ways that would explicitly narrow its substantive scope.(5) In the 106th Congress, for example, Senator Orrin Hatch introduced a bill that, among other things, would remove from the scope of habeas those claims based on the admission of confessions obtained in violation of Miranda v. Arizona(6) where the underlying confession was otherwise voluntary.(7) Given the revived congressional interest in the federal writ's substantive scope that is reflected by this bill, the time is ripe to examine how Congress, if it ultimately decides to narrow the substantive scope of the writ, might constitutionally do so.(8) In fashioning any such leaner, cleaner writ of habeas corpus, Congress will be called upon to balance the important role of federal habeas as a matter of criminal justice policy, its constitutionally mandated underpinnings, and the costs it imposes upon state sovereignty and upon the federal courts.

Part I of this Article provides a necessary backdrop by sketching out the current contours of the writ, as they exist in practice. To do so, this part begins by describing the patchwork of procedural and quasi-procedural doctrines that the Supreme Court and Congress have developed in the past thirty years and turns to an examination of how those doctrines work together to make it more difficult for state prisoners to present and prevail upon their federal constitutional claims on federal habeas. …