Habeas Corpus (Update 1)

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HABEAS CORPUS (Update 1)

A federal court is empowered to grant a writ of habeas corpus to any individual who is held in custody by federal or state government in violation of the Constitution of the United States. Although state courts also can provide habeas corpus relief to those in state custody, the most important contemporary use of habeas corpus is as a vehicle for federal court review of state court criminal convictions. After almost 200 years of habeas corpus litigation in the United States, including more than a century under the reconstruction statutes that made federal court relief available to state prisoners, the scope of habeas corpus remains controversial.

Conservatives view habeas corpus as a means for guilty people to escape punishment. They seek to limit the availability of the writ, arguing that habeas corpus undermines the finality of criminal convictions and creates friction between federal and state courts. Liberals, in contrast, see federal habeas corpus review as an essential protection to assure that no person whose constitutional rights have been violated—whether factually innocent or guilty—is imprisoned.

The debate over the scope of habeas corpus review implicates major underlying disputes in constitutional law. For example, federal district court review of state court criminal convictions raises questions of federalism, along with the question of whether state judiciaries can be trusted to protect federal constitutional rights. Moreover, disagreements about the availability of habeas corpus reflect different views about the value of the constitutional rules governing criminal procedure. Those who oppose Supreme Court protections for criminal defendants (such as the exclusionary rule and miranda rule warnings) seek to limit their enforcement by narrowing the scope of habeas corpus review.

Not surprisingly, the Supreme Court frequently splits along ideological lines in ruling on habeas corpus issues. The warren court's expansion of habeas corpus relief was halted by the burger court, which adopted substantial new restrictions on federal court habeas review. Most recently, the rehnquist court has announced important additional limits on the matters that can be raised in federal habeas corpus proceedings. Three restrictions are particularly significant.

First, a petitioner is allowed to present in federal habeas corpus only those matters that were argued in the proceedings that led to his or her conviction, unless the individual can demonstrate cause for the failure to raise the objection and prejudice from the asserted constitutional violation. Under the Warren Court decision in fay v. noia (1963), an individual could present a constitutional issue on habeas corpus, even if not argued earlier, unless it could be demonstrated that the person "deliberately bypassed" the earlier opportunity to litigate the matter. But the Burger Court expressly overruled this standard, which presumptively allowed issues to be presented in federal court, and instead held that new matters could be raised only if there was "cause" for the earlier default and "prejudice" arising from it.

In recent years, the Court has made it clear that the "cause and prejudice" standard is a difficult one to meet. In Murray v. Carrier (1986) the Supreme Court summarized the circumstances under which an individual has sufficient cause to raise a new matter on habeas corpus. The Court explained that there was sufficient cause to permit a federal habeas petition to raise a new matter only if defense counsel could not reasonably have known of a legal or factual issue, if the government's attorney interfered with the presentation of the issue, or if there was ineffective assistance of counsel. Each of these proofs of cause is hard to accomplish, and the difficulty reflects the Court's expressly stated view that federal habeas corpus relief has significant costs and should be limited. The Court, however, has said, in Smith v. Murray (1986), that individuals who can demonstrate that they are probably innocent of the crime for which they were convicted should be able to secure relief, regardless of the reason for the earlier procedural default.

Although several Supreme Court opinions define "cause," the Court has found fewer occasions to clarify the meaning of "prejudice." The Court indicated in United States v. Frady (1982) that a petitioner can meet this requirement only by demonstrating that the constitutional violations caused "actual and substantial disadvantage" that infected the "entire trial with errors of constitutional dimension."

Second, the Supreme Court has restricted the ability of individuals to relitigate on habeas corpus issues that were raised and decided in state court. In brown v. allen (1953) the Court ruled that individuals claiming to be held in custody in violation of the United States Constitution could present their claims in federal court even if those claims had been fully and fairly litigated in the state court. But in stone v. powell (1976) the Burger Court limited this precedent, holding that a petitioner could not relitigate the claim that a state court improperly had admitted evidence that was the product of an illegal search or seizure, provided that the state court had offered a full and fair opportunity for a hearing on the issue. The Court emphasized that exclusionary rule claims do not relate to the accuracy of the fact-finding process. Furthermore, the Court said, state judges could be trusted to protect the fourth amendment.

The Court refused to extend Stone v. Powell to challenges to racial discrimination in grand jury selection (Rose v. Mitchell, 1979), to burden of proof issues (Jackson v. Virginia, 1979), or to claims of ineffective assistance of counsel based on the failure to object to admission of evidence (Kimmelman v. Morrison, 1986). But in the 1989 case of Duckworth v. Eagan, two Justices, sandra day o'connor and antonin scalia, stated that they would apply Stone to bar habeas corpus review of claims of Fifth Amendment violations because of improper administration of Miranda warnings. In light of the evident desire of the conservative majority on the Court to constrict the availability of habeas corpus, the O'Connor-Scalia position may come to command a majority of the Court.

Finally, in Teague v. Lane (1989) the Supreme Court restricted the power of a federal court in habeas corpus to recognize new constitutional rights. Until Teague, federal courts considered habeas corpus petitions alleging constitutional violations, regardless of whether the court would be recognizing a new right that would not be applied retroactively in other cases. But in Teague, the Court held that habeas petitions may raise only claims to rights that are "dictated" by precedent, except where the recognition of a new right would have retroactive effect. Because few newly recognized criminal procedure rights are given retroactive application, Teague will effectively prevent federal habeas petitioners from presenting claims, except as to rights that have been established previously.

These three sets of restrictions on federal habeas corpus reflect the Supreme Court's desire to limit the procedural protections available to criminal defendants. But these decisions are disturbing for those who believe that a federal forum should be available to those convicted through violations of federal constitutional rights. Moreover, given a conservative Court that sees the costs of habeas corpus as generally outweighing its benefits given legislative pressures for federal statutes limiting habeas corpus review, further restrictions seem likely.

Erwin Chemerinsky
(1992)

(see also: Procedural Due Process of Law, Criminal.)