Untangling the Twists of Habeas Corpus

By Yackle, Larry | Judicature, September/October 2011 | Go to article overview

Untangling the Twists of Habeas Corpus


Yackle, Larry, Judicature


Untangling the twists of habeas corpus Habeas for the Twenty-First Century, by Nancy J. King & Joseph L. Hoffmann. University of Chicago Press. 2011. 272 pages. $45.00

Take it from me. The One job you don't want is sorting out federal habeas corpus. By all accounts, existing arrangements are an unrelieved disaster. Yet now come Nancy King and Joseph Hoffmann with a valiant effort to set things in order. Their book describes habeas corpus as the writ currently stands, offers explanations of why and how we have come to this pass, and, most important, advances a definite plan of action for habeas in criminal cases - a way to fix what so desperately needs fixing. This is a good book, a valuable book. It is informative, essentially accurate in its presentation of objective data, and scrupulously honest in its advocacy of controversial policy.

King and Hoffmann Undertake to be a comprehensive. s But that promise must be understood in context. A slim university press monograph has limits; readers who want a treatise on the law of habeas corpus should look elsewhere. Moreover, this book is a single contribution to an extensive academic literature and can be assessed only in comparison to other views regarding the writ and what to do about it. John Blume, Sheri Johnson, and Keir Weyble respond to King and Hoffmann, virtually point-by-point.1

King and Hoffmann begin with habeas corpus where they are fairly Comfortable with the status quo: cases involving deten don in the absence of criminal conviction. Illustrations coverà lot of ground - from petitions by persons subject to civil commitment as a danger to themselves or others (because of infectious disease, for example) to aliens in military detention at Guantanàmo, ostensibly to prevent them from taking up arms against the United States. King and Hoffmann nonetheless discern a common theme - namely, that habeas corpus typically supplies a vehicle for judicial examination of detention as a stop-gap during crises when the ordinary balance of governance is upset. The historical pattern, according to King and Hoffmann, is that in time we fashion alternative mechanisms for ensuring appropriate judicial superintendence. There are exceptions. So far at least, we have forged no substitute for the writ in Guantanamo preventive detention cases. Yet King and Hoffmann anticipate that an acceptable alternative will ultimately be found even there.

King artd Hoffmann are far from satisfied with the state of habeas corpus in cases involving detention after criminal conviction. In part, they adopt the assessment that other Critics offer: The Warren Court developed the lower federal courts' habeas jurisdiction to implement its interpretations of the Bill of Rights in the 1960s when there was a demonstrable need for federal court attention to the enforcement of federal constitutional safeguards in state court. Today, so this argument goes, that need has passed. In response to federal habeas supervision of state criminal process, state authorities and state courts have become more willing and able to see that federal procedural requirements are met in their own precincts.

King and Hoffmann add their own twists. By their account, the theme that habeas is properly an instrument for dealing with shortlived distortions carries over to cases in which convicts petition the federal courts for habeas relief from custody pursuant to criminal judgments in state court. Here, too, federal habeas should give way to effective substitutes. But that hasn't happened, and habeas continues without any justifying rationale. King and Hoffmann acknowledge the common understanding that habeas remains an important means by which federal courts enforce federal rights. But they critique conventional wisdom on two counts.

First, most state convicts are ineligible to file federal petitions. Prisoners must be in custody to do so, but most sentences are fairly short, and prisoners are released before they can exhaust state opportunities for airing federal claims and put themselves in position to petition for the federal writ. …

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