At a time when criminal justice issues such as mass incarceration are the subject of considerable public discussion, it is noteworthy how little attention has been paid to one of the great legal tragedies of the modern era: the almost total evisceration by Congress and the Supreme Court of the writ of habeas corpus.
Once known as the Great Writ or the Great Writ of Liberty, habeas corpus has been available since the Magna Carta as a means by which prisoners can challenge the legality of their custody. The writ is explicitly recognized in the Constitution, and in the Judiciary Act of 1789, Congress conferred habeas jurisdiction on the newly created federal courts. Then, in the Habeas Corpus Act of 1867, the Reconstruction Congress extended the benefits of the writ to former slaves and others convicted in state courts, enabling them to challenge the constitutionality of their convictions in federal court. The decisions of the Warren Court extending the protections of the Fourth, Fifth, and Sixth Amendments to criminal defendants in state courts made federal habeas corpus an essential remedy for state prisoners. This was so because many state officials, including law enforcement officers and judges, resisted implementing the rights identified by the Supreme Court.
In 1996, however, led by Newt Gingrich who was promoting the so-called “Contract with America,” Congress passed a bill known as the Antiterrorism and Effective Death Penalty Act (AEDPA). The bill had very little to do with either terrorism or the death penalty. What the bill did do was make it extremely difficult for a federal court to grant habeas relief to a state prisoner whose constitutional rights had been violated. Sadly, over the objection of civil libertarians and his own counsel (former congressman and judge Abner Mikva), President Clinton signed the bill, seeking to present himself as being tough on crime.
AEDPA undermined habeas corpus in several ways. First, it created numerous procedural obstacles that state prisoners must navigate almost always without counsel. Most habeas petitioners are poorly educated, many are mentally ill, and few are capable of effectively presenting their claims. The procedural obstacles created by AEDPA placed them at an even greater disadvantage. Second, AEDPA required federal courts to defer to state court rulings that wrongly interpret the U.S. Constitution as long as the rulings, however erroneous, are not unreasonable. And the Supreme Court has since made clear that very few state court mistakes are sufficiently erroneous to justify a federal court in treating them as unreasonable. Thus, federal courts must put their imprimatur on interpretations of the Constitution that are just plain wrong. Third, AEDPA barred federal district courts from granting relief to prisoners based on precedents set by courts of appeals or other district courts. Rather, federal district courts may grant habeas petitions only if the Supreme Court has weighed in on the issue in a “clearly established” determination, a vague and not well-defined phrase. To make matters worse, the Supreme Court has interpreted AEDPA rigidly, almost uniformly rejecting prisoners’ claims. Thus, many claimants whose constitutional rights have been violated are unable to obtain relief and remain in prison.
The reason that federal habeas review of state court convictions is so important is that federal courts have numerous institutional advantages. The most important of these is that, unlike most state court judges, federal judges do not have to run for reelection or stand for reappointment by other officials who must run for reelection. Many state judicial elections, including almost all state supreme court elections, have become hotly contested, intensely partisan, multimillion-dollar affairs focusing on whether the incumbent or the challenger is “soft on crime.” And electoral concerns have an impact on judges who understand that every criminal case that comes before them is a potential television attack ad. This sometimes makes it difficult for judges to protect defendants’ constitutional rights. In addition, many state courts have heavy caseloads and limited staff, and they operate within very conservative legal cultures. Thus, in the absence of meaningful federal habeas review, prisoners whose constitutional rights have been violated, many of whom are minorities, have no place to go and no chance of vindicating the rights of which they have been deprived.
For these reasons, it is essential that a future Congress repeal or substantially revise AEDPA. Short of this, there is no way to escape the tragic consequences that the virtual destruction of the once Great Writ has brought about.