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.
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