Habeas Corpus: Modern History

General Background

The writ of habeas corpus has long been one of the primary legal remedies sought by prisoners who believe that they are being held in custody in violation of federal law. The importance of the ‘‘Great Writ’’ is reflected in Article I, section 9 of the U.S. Constitution, which provides that ‘‘[t]he Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.’’

To obtain what practitioners often call ‘‘habeas relief,’’ a prisoner must file a civil lawsuit in federal court against the person holding him or her in custody— usually the warden in charge of the facility where the prisoner is being held. In the papers initiating the lawsuit, the prisoner must outline the reasons for believing that his or her detention violates federal law. Ordinarily, the prisoner must allege a violation of constitutional (rather than merely statutory) law. In almost all cases, the remedy that the prisoner must seek is release from custody, a lawful trial, or a lawful sentence. The vast majority of habeas lawsuits involve prisoners who were charged with a state crime, convicted in a state court, and then sentenced either to a term of imprisonment or, in the most extreme cases, to death. State prisoners usually must wait to file their habeas lawsuits until after they have ‘‘exhausted their state remedies’’ by presenting all of their claims to the appropriate state’s appellate courts.

The modern era has seen great changes in the rules relating to federal habeas lawsuits, from the vast expansion of habeas remedies’ availability in Brown v. Allen (1953) and Fay v. Noia (1963), to the significant restrictions placed on habeas remedies’ availability by the Burger and Rehnquist Courts and by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA).

Expansion of Habeas Corpus under Brown and Fay

In Brown v. Allen (1953), the U.S. Supreme Court greatly broadened the range of cases in which federal courts could grant prisoners’ requests for habeas relief. The Court held that, if a federal judge agreed with a prisoner’s constitutional claim, he or she could award the prisoner the appropriate remedy, even if a state court had already considered that very claim and rejected it. The Court went still further in Fay v. Noia (1963), holding that, even if the state courts had refused to hear a prisoner’s claim because the prisoner had failed to follow the state courts’ applicable procedural rules (such as rules requiring the prisoner to file certain papers by specified deadlines or requiring the prisoner to let the court know immediately if he or she objects to evidence offered by the prosecution at trial), the federal court could still agree to consider the claim. The only time that a prisoner’s failure to obey a state court’s procedural rules could bar a federal court from granting habeas relief, the Fay Court held, was when the prisoner himself or herself knew about those procedural rules and decided not to follow them.

The Court’s rulings in Brown and Fay coincided with an era in which the Court was using the Fourteenth Amendment’s due process clause and the incorporation doctrine to expand the range of constitutional rights that a person could claim when being investigated, prosecuted, or sentenced by state authorities. As a result of these developments and the Court’s rulings in Brown and Fay, federal habeas lawsuits became one of the primary occasions on which the Warren Court announced new rules of constitutional law to be applied in criminal cases.

By the 1970s, state prisoners’ ability to use habeas corpus lawsuits to challenge their convictions and sentences had become intensely controversial. Critics argued, for example, that federal judges were not showing sufficient respect for the work being done by their counterparts within the state judiciaries. Others contended that federal habeas lawsuits were largely to blame for the long delays that often separated a prisoner’s death sentence and execution. Critics pointed out, for example, that there were no strict deadlines for filing habeas lawsuits and that death-row inmates often were allowed to file one habeas petition after another, thereby forestalling their executions for many years. Supporters argued, however, that federal habeas proceedings were essential in order to catch all of the constitutional violations that occurred in criminal cases and that escaped the state courts’ attention. Habeas corpus’ supporters also contended that, because vindicating the constitutional rights of convicted criminals was often politically unpopular, federal judges with lifetime appointments to the bench should be given the opportunity to review each allegation of constitutional impropriety alleged by a prisoner.

Restriction of Habeas Corpus under the Burger and Rehnquist Courts and under AEDPA

In the final quarter of the twentieth century, the Burger and Rehnquist Courts issued a number of rulings that significantly restricted prisoners’ ability to prevail in federal habeas lawsuits. In Stone v. Powell (1976), for example, the Supreme Court categorically declared that a state prisoner ordinarily cannot seek habeas relief based on a Fourth Amendment claim that the police obtained incriminating evidence through an unreasonable search or seizure. In Wainwright v. Sykes (1977) and Coleman v. Thompson (1991), the Court overruled its earlier decision in Fay v. Noia, declaring that, with narrow exceptions, a prisoner cannot raise a claim in a federal habeas lawsuit if he or she failed to follow the state courts’ procedural rules for presenting that claim to the state courts. In Teague v. Lane (1989), the Court went a long way toward reversing the practice that had prevailed under the Warren Court, declaring that, with only the narrowest of exceptions, ‘‘habeas corpus cannot be used as a vehicle to create new constitutional rules of criminal procedure.’’

Congressional Republicans had long wished to join the Burger and Rehnquist Courts in limiting prisoners’ ability to prevail in federal habeas lawsuits. Those efforts were resisted by Democrats, however, until an act of domestic terrorism united the country’s politicians and set the stage for a large number of federal anticrime legislative initiatives. On April 19, 1995, a bomb planted by Timothy McVeigh destroyed the Alfred P. Murrah Federal Building in Oklahoma City, Oklahoma, killing 168 people and injuring nearly 1,000 others. Congressional leaders quickly responded with AEDPA, setting forth new federal standards on a wide range of matters, including terrorism and civil liberties, victims’ rights, the treatment of aliens, weapons of mass destruction, and federal habeas corpus. Almost exactly one year after the Oklahoma City bombing, President Bill Clinton signed AEDPA into law.

In its provisions relating to habeas corpus, AEDPA codified the Court’s rulings in some areas and further restricted habeas relief availability in others. AEDPA established a one-year statute of limitations for filing habeas claims, for example, and imposed even stricter deadlines—for prisoners and federal judges alike—in capital cases arising from states that met certain standards for providing indigent death-row prisoners with free and competent legal representation. The statute also declared that, absent extraordinary circumstances, a prisoner cannot file more than one federal habeas lawsuit—he or she ordinarily must raise all of his or her claims in his or her first habeas lawsuit. AEDPA also limited federal courts’ ability to hear new evidence in support of prisoners’ claims. And, in perhaps its most significant and controversial provision, AEDPA greatly narrowed the rule that theCourt had established inBrown v.Allen. This provision stated that, when a prisoner files a federal habeas lawsuit based upon a claim that was heard and rejected by the state courts, the federal court must similarly reject the claim unless it finds that the state courts’ handling of the claim was contrary to clearly established Supreme Court precedent, involved an unreasonable application of Supreme Court precedent, or was based upon an unreasonable determination of the relevant facts. Under AEDPA, therefore, a federal judge must reject a request for habeas relief that is based upon a claim previously rejected by a state court—even if the federal judge disagrees with the state court’s ruling—unless the federal judge concludes that the state court’s ruling was either unreasonable or directly contrary to Supreme Court holdings.

Although surely no one wants to abolish it entirely, habeas corpus will always be controversial. Skeptics will claim that federal habeas proceedings do not show sufficient respect for the work being done by the states’ trial and appellate judges and that habeas lawsuits frustrate states’ efforts to bring individual cases to a final close. Proponents will argue that, in the absence of a meaningful opportunity to seek federal habeas relief, prisoners whose constitutional rights were violated by state officials will either be executed or spend years in prison. Judges and attorneys who handle habeas cases, meanwhile, will be asked to interpret and apply the very complex laws that emerge as the product of those ongoing debates.

TODD E. PETTYS

References and Further Reading

  • Hertz, Randy, and James S. Liebman. Federal Habeas Corpus Practice and Procedure. 4th ed. Charlottesville, Va.: LexisNexis, 2001.

Cases and Statutes Cited


See also Capital Punishment: Antiterrorism and Effective Death Penalty Act of 1996; Habeas Corpus in Colonial America; Incorporation Doctrine; Terrorism and Civil Liberties

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