Habeas corpus in the United States

Habeas corpus (/'heɪbiəs 'kɔɹpəs/), Latin for "you [should] have the body," is the name of a legal action or writ by means of which detainees can seek relief from unlawful imprisonment. The Suspension Clause of the United States Constitution specifically included the English common law procedure in Article One, Section 9, clause 2, which states:

The 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.

United States law affords persons the right to petition the federal courts for a writ of habeas corpus. Habeas corpus petitions are generally filed as pro se cases, and the government (state or federal) is usually ordered by the court to respond. Individual states also afford persons the ability to petition their own state court systems for habeas corpus pursuant to their respective constitutions and laws when held or sentenced by state authorities.

Federal habeas review did not extend to those in state custody until almost a century after the nation's founding. During the Civil War and Reconstruction, as later during the War on Terrorism, the right to petition for a writ of habeas corpus was substantially curtailed for persons accused of engaging in certain conduct. In reaction to the former, and to ensure state courts enforced federal law, a Reconstruction Act for the first time extended the right of federal court habeas review to those in the custody of state courts (prisons and jails), very greatly expanding the writ essentially to all imprisoned on American soil for the first time. The federal habeas statute that resulted, with substantial amendments, is now at 28 U.S.C. § 2241. For many decades now, the great majority of habeas petitions reviewed in federal court have been filed by those imprisoned in state prisons by state courts for state crimes (e.g., murder, rape, robbery, etc.), since in the American system crime has historically been a matter of state law. Thus, habeas is a very interesting area for the relationship between federal and state courts and systems of laws, within the study of federalism.

It should be noted that the privilege of habeas corpus is not a right against unlawful arrest, but rather a right to be released from imprisonment after such arrest. If you believe the arrest is without legal merit, and subsequently, refuse to come quietly, you are still guilty of resisting arrest, which is a crime in and of itself, even if the initial arrest itself was illegal.

Origin

Habeas corpus derives from the English common law where the first recorded usage was in 1305, in the reign of King Edward I of England.

Winston Churchill, in his chapter on the English Common Law in The Birth of Britain, explains the process thus:

Only the King had a right to summon a jury. Henry accordingly did not grant it to private courts...But all this was only a first step. Henry also had to provide means whereby the litigant, eager for royal justice, could remove his case out of the court of his lord into the court of the King. The device which Henry used was the royal writ...and any man who could by some fiction fit his own case to the wording of one of the royal writs might claim the King's justice.

The procedure for the issuing of writs of habeas corpus was first codified by the Habeas Corpus Act 1679, following judicial rulings which had restricted the effectiveness of the writ. A previous act had been passed in 1640 to overturn a ruling that the command of the King was a sufficient answer to a petition of habeas corpus.

The writ of habeas corpus was issued by a superior court in the name of the Monarch, and commanded the addressee (a lower court, sheriff, or private subject) to produce the prisoner before the Royal courts of law. Petitions for habeas corpus could be made by the prisoner himself or by a third party on his behalf, and as a result of the Habeas Corpus Acts could be made regardless of whether the court was in session, by presenting the petition to a judge.

The 1678 Act remains important in 21st century cases. This Act and the historical body of British practice that relies upon it has been used to interpret the habeas rights granted by the United States Constitution, while taking into account the understanding of the writ held by the framers of the Constitution.

Federal law

The Suspension Clause of Article I does not expressly establish a right to the writ of habeas corpus; rather, it prevents Congress from restricting it. There has been much scholarly debate over whether the Clause positively establishes a right under the Federal Constitution, merely exists to prevent Congress from prohibiting state courts from granting the writ, or protects a pre-existing common law right enforceable by federal judges. However, in Immigration and Naturalization Service v. St. Cyr, 533 U.S. 289 (2001), and Boumediene v. Bush, 553 U.S. ___ (2008), the Supreme Court suggested that the Suspension Clause protects "the writ as it existed in 1789," that is, as a writ which federal judges could issue in the exercise of their common law authority.

Regardless of whether the writ is positively guaranteed by the Constitution, habeas corpus was first established by statute in the Judiciary Act of 1789. This statutory writ applied only to those held in custody by officials of the Executive Branch of the federal government and not to those held by state governments, which independently afford habeas corpus pursuant to their respective constitutions and laws. From 1789 until 1866, the federal writ of habeas corpus was largely restricted to prisoners in federal custody, at a time when no direct appeals from federal criminal convictions were provided for by law. Habeas corpus remained the only means for judicial review of federal capital convictions until 1889, and the only means for review of federal convictions for other "infamous crimes" until 1891. [1] Until 1983 the writ of habeas corpus remained the only way that decisions of military courts could be reviewed by the United States Supreme Court.

The authority of federal courts to review the claims of prisoners in state custody was not clearly established until Congress adopted a statute (28 U.S.C. § 2254) granting federal courts that authority in 1867, as part of the post-Civil War Reconstruction. The U.S. Supreme Court in the case of Waley v. Johnson, 316 U.S. 101 (1942), interpreted this authority broadly to allow the writ to be used to challenge convictions or sentences in violation of a defendant's constitutional rights where no other remedy was available.

The United States Congress grants U.S. District Courts, the U.S. Supreme Court, and all Article III federal judges, acting in their own right, jurisdiction under 28 U.S.C. § 2241 to issue writs of habeas corpus to release prisoners held by any government entity within the country from custody, subject to certain limitations, in the following circumstances:

• Is in custody under or by color of the authority of the United States or is committed for trial before some court thereof; or
• Is in custody for an act done or omitted in pursuance of an Act of Congress, or an order, process, judgment or decree court or judge of the United States; or
• Is in custody in violation of the Constitution or laws or treaties of the United States; or
• Being a citizen of a foreign state and domiciled therein is in custody for an act done or omitted under any alleged right, title, authority, privilege, protection, or exemption claimed under the commission, order or sanction of any foreign state, or under color thereof, the validity and effect of which depend upon the law of nations; or
• It is necessary to bring said persons into court to testify or for trial.

In 1950s and 1960s, decisions by the Warren Supreme Court greatly expanded the use and scope of the federal writ largely due to the fact that by "constitutionalizing" criminal procedure by applying the Bill of Rights, in part, to state courts using the incorporation doctrine. This afforded state prisoners many more opportunities to claim that their convictions were unconstitutional, which provided grounds for habeas corpus relief. In the last thirty years, decisions by the Burger and Rehnquist Courts have somewhat narrowed the writ. The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) further limited the use of the federal writ by imposing a one-year statute of limitations and dramatically increasing the federal judiciary's deference to decisions previously made in state court proceedings either on appeal or in a state court habeas corpus action.

One of AEDPA's most controversial changes is the requirement that any constitutional right invoked to vacate a state court conviction rooted in a mistake of law by the state court must have "resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States." Thus, a U.S. Court of Appeals must ignore its own precedents and affirm a state court decision contrary to its precedents, if the U.S. Supreme Court has never squarely addressed a particular issue of federal law.[2]

Suspension during the Civil War and Reconstruction

On April 27, 1861, the writ of habeas corpus was suspended by President Abraham Lincoln in Maryland and parts of midwestern states, including southern Indiana during the American Civil War. Lincoln did so in response to riots, local militia actions, and the threat that the border slave state of Maryland would secede from the Union, leaving the nation's capital, Washington, D.C., surrounded by hostile territory. Lincoln chose to suspend the writ over a proposal to bombard Baltimore, favored by his General-in-Chief Winfield Scott. Lincoln was also motivated by requests by generals to set up military courts to rein in "Copperheads" or Peace Democrats, and those in the Union who supported the Confederate cause. His action was challenged in court and overturned by the U.S. Circuit Court in Maryland (led by Supreme Court Chief Justice Roger B. Taney) in Ex Parte Merryman, 17 F. Cas. 144 (C.C.D. Md. 1861). Lincoln ignored Taney's order. In the Confederacy, Jefferson Davis also suspended habeas corpus and imposed martial law. This was in part to maintain order and spur industrial growth in the South to compensate for the economic loss inflicted by its secession.

In 1864, Lambdin P. Milligan and four others were accused of planning to steal Union weapons and invade Union prisoner-of-war camps and were sentenced to hang by a military court. However, their execution was not set until May 1865, so they were able to argue the case after the war ended. In Ex Parte Milligan 71 U.S. 2 (1866), the Supreme Court of the United States decided that the suspension of the writ did not empower the President to try and convict citizens before military tribunals. The trial of civilians by military tribunals is allowed only if civilian courts are closed. This was one of the key Supreme Court Cases of the American Civil War that dealt with wartime civil liberties and martial law.

In the early 1870s, President Ulysses S. Grant suspended habeas corpus in nine counties in South Carolina, as part of federal civil rights action against the Ku Klux Klan under the 1870 Force Act and 1871 Ku Klux Klan Act.

Denial to aliens and nonresident combatants during World War II

In 1942, eight German saboteurs, including two U.S. citizens, who had entered the United States were convicted by a secret military court set up by President Franklin Delano Roosevelt. In Ex parte Quirin 317 U.S. 1 (1942), the Supreme Court of the United States decided that the writ of habeas corpus did not apply, and that the military tribunal had jurisdiction in this case due to the saboteurs status as unlawful combatants.

After the end of the war, several German prisoners held in American-occupied Germany petitioned the District Court for the District of Columbia for a writ of habeas corpus. In Johnson v. Eisentrager 339 U.S. 763 (1950), the Supreme Court of the United States decided that the U.S. court system had no jurisdiction over German war criminals who had been captured in Germany and who had never entered U.S. soil.

Suspension during the War on Terrorism

The November 13, 2001 Presidential Military Order purported to give the President of the United States the power to detain non-citizens suspected of connection to terrorists or terrorism as enemy combatants. As such, that person could be held indefinitely, without charges being filed against him or her, without a court hearing, and without legal counsel. Many legal and constitutional scholars contended that these provisions were in direct opposition to habeas corpus, and the United States Bill of Rights.

In Hamdi v. Rumsfeld, 542 U.S. 507 (2004), re-confirmed the right of United States citizens to habeas corpus even when declared an enemy combatant. The Court affirmed the basic principle that habeas corpus of a citizen could not be revoked.

In Hamdan v. Rumsfeld, 548 U.S. 557 (2006), Salim Ahmed Hamdan petitioned for a writ of habeas corpus, challenging that the military commissions set up by the Bush administration to try detainees at Guantanamo Bay "violate both the UCMJ and the four Geneva Conventions." In a 5-3 ruling the Court rejected Congress's attempts to strip the court of jurisdiction over habeas corpus appeals by detainees at Guantánamo Bay. Though Congress had previously passed the Department of Defense Appropriations Act, 2006 which stated in Section 1005(e), "Procedures for Status Review of Detainees Outside the United States.":

"(1) Except as provided in section 1005 of the Detainee Treatment Act of 2005, no court, justice, or judge shall have jurisdiction to hear or consider an application for a writ of habeas corpus filed by or on behalf of an alien detained by the Department of Defense at Guantanamo Bay, Cuba.

(2)The jurisdiction of the United States Court of Appeals for the District of Columbia Circuit on any claims with respect to an alien under this paragraph shall be limited to the consideration of whether the status determination ... was consistent with the standards and procedures specified by the Secretary of Defense for Combatant Status Review Tribunals (including the requirement that the conclusion of the Tribunal be supported by a preponderance of the evidence and allowing a rebuttable presumption in favor of the Government's evidence), and to the extent the Constitution and laws of the United States are applicable, whether the use of such standards and procedures to make the determination is consistent with the Constitution and laws of the United States."

On 29 September 2006, the U.S. House and Senate approved the Military Commissions Act of 2006, a bill which suspended habeas corpus for any alien determined to be an "unlawful enemy combatant engaged in hostilities or having supported hostilities against the United States" by a vote of 65-34. (This was the result on the bill to approve the military trials for detainees; an amendment to remove the suspension of habeas corpus failed 48-51.) President Bush signed the Military Commissions Act of 2006 into law on October 17, 2006.

With the MCA's passage, the law altered the language from "alien detained ... at Guantanamo Bay":

"Except as provided in section 1005 of the Detainee Treatment Act of 2005, no court, justice, or judge shall have jurisdiction to hear or consider an application for a writ of habeas corpus filed by or on behalf of an alien detained by the United States who has been determined by the United States to have been properly detained as an enemy combatant or is awaiting such determination." §1005(e)(1), 119 Stat. 2742.

The Supreme Court of the United States ruled in Boumediene v. Bush that the MCA constituted an unconstitutional encroachment of Habeas Corpus rights, and established jurisdiction for federal courts to hear petitions for habeas corpus from Guantanamo detainees tried under the Act.

Under the MCA, the law restricted habeas appeals for only those aliens detained as enemy combatants, or awaiting such determination. Left unchanged was the provision that, after such determination is made, it is subject to appeal in U.S. Court, including a review of whether the evidence warrants the determination. If the status was upheld, then their imprisonment was deemed lawful; if not, then the government could change the prisoner's status to something else, at which point the habeas restrictions no longer applied.

There is, however, no legal time limit which would force the government to provide a Combatant Status Review Tribunal hearing. Prisoners were, but are no longer, legally prohibited from petitioning any court for any reason before a CSRT hearing takes place.

In January 2007, Attorney General Alberto Gonzales told the Senate Judiciary Committee that in his opinion: "There is no express grant of habeas in the Constitution. There's a prohibition against taking it away." He was challenged by Sen. Arlen Specter who asked him to explain how it is possible to prohibit something from being taken away, without first being granted.

As Robert Parry writes in the Baltimore Chronicle & Sentinel:

Applying Gonzales’s reasoning, one could argue that the First Amendment doesn’t explicitly say Americans have the right to worship as they choose, speak as they wish or assemble peacefully.

Ironically, Gonzales may be wrong in another way about the lack of specificity in the Constitution’s granting of habeas corpus rights. Many of the legal features attributed to habeas corpus are delineated in a positive way in the Sixth Amendment...

The Department of Justice has taken the position in litigation that the Military Commissions Act of 2006 does not amount to a suspension of the writ of habeas corpus. The U.S. Court of Appeals for the D.C. Circuit agreed in a 2-1 decision, on February 20, 2007, which the U.S. Supreme Court initially declined to review. The U.S. Supreme Court then reversed its decision to deny review and took up the case in June 2007. In June 2008, the court ruled 5-4 that that the act did suspend habeas and found it unconstitutional.

Federal habeas corpus statistics

Number of cases

In 2004, there were about 19,000 non-capital federal habeas corpus petitions filed and there were about 210 capital federal habeas corpus petitions filed in U.S. District Court. The vast majority of these were from state prisoners, not from those held in federal prisons. There are about 60 habeas corpus cases filed in the U.S. Supreme Court's original jurisdiction each year. The U.S. Courts of Appeal do not have original jurisdiction over habeas corpus petitions.

Types of cases in which petitions are filed

As of 1992, less than 1% of federal habeas corpus petitions involved death penalty sentences, although 21% involved life sentences. At that time about 23% had been convicted of homicide, about 39% had been convicted of other serious violent crimes, about 27% had been convicted of serious non-violent crimes, and about 12% were convicted of other offenses. These are almost exclusively state offenses and thus petitions filed by state prisoners.

Exhaustion of state-court remedies often takes five to ten years after a conviction, so only state prisoners facing longer prison sentences are able to avail themselves of federal habeas corpus rights without facing a summary dismissal for failure to exhaust state remedies. The lack of state remedies to exhaust also means that the timeline for federal death penalty habeas review is much shorter than the timeline for state death penalty habeas review (which can drag on literally for decades).

As of 2004, the percentage of federal habeas corpus petitions involving state death sentences was still about 1% of the total.

Success rates

About 63% of issues raised in habeas corpus petitions by state court prisoners are dismissed on procedural grounds at the U.S. District Court level, and about 35% of those issues are dismissed on the merits. About 2% are either "remanded" to a state court for further proceedings (which poses an interesting problem of federalism -- the federal court usually issues a writ to the state prison to release the prisoner, but only if the state court does not hold a certain proceeding within a certain time), or, far less frequently, resolved favorably to the prisoner on the merits outright. About 57% of habeas corpus issues dismissed on procedural grounds in 1992 were dismissed for a failure to exhaust state remedies.

Success rates are not uniform, however. James Liebman, Professor of Law at Columbia Law School, stated in 1996 that his study found that when habeas corpus petitions in death penalty cases were traced from conviction to completion of the case that there was "a 40 percent success rate in all capital cases from 1978 to 1995." Similarly, a study by Ronald Tabek in a law review article puts the success rate in habeas corpus cases involving death row inmates even higher, finding that between "1976 and 1991, approximately 47% of the habeas petitions filed by death row inmates were granted." Most habeas corpus petitioners in death penalty cases are represented by attorneys, but most habeas corpus petitioners in non-death penalty cases represent themselves. This is because federal funds are not available to non-capital state habeas petitioners to pay for attorneys unless there is good cause, there being no federal right to counsel in such matters. However, in state capital cases, the federal government provides funding for the representation of all capital habeas petitioners.

Thus, about 20% of successful habeas corpus petitions involve death penalty cases.

These success rates predate major revisions in habeas corpus law that restricted the availability of federal habeas corpus relief when AEDPA was adopted in 1996, over a decade ago. Post-AEDPA, the great disparity in success rates remains, however, with the federal courts' overturning of state capital cases a major reason that many states have been unable to carry out a majority of capital sentences imposed and have long backlog lists.

Disposition time

The time required to adjudicate habeas corpus petitions varies greatly based upon factors including the number of issues raised, whether the adjudication is on procedural grounds or on the merits, and the nature of the claims raised.

As of 1992, U.S. District Courts took an average of two and a half years to adjudicate habeas corpus petitions in death penalty cases raising multiple issues that were resolved on the merits, about half of long for other multiple issue homicide cases, and about nine months in cases resolved on procedural grounds.

AEDPA was designed to reduce the disposition times of federal habeas corpus petitions. But AEDPA has a little impact in non-capital cases, where a majority of cases are dismissed on procedural grounds, very few prisoners prevail and most prisoners are not represented by attorneys. The disposition time in capital cases has actually increased 250% from the time of AEDPA's passage to 2004.

Filing rates

As of 1991, the average number of federal habeas corpus petitions filed in the United States was 14 per 1,000 people in state prison, but this ranged greatly from state to state from a low of 4 per 1,000 in Rhode Island to a high of 37 per 1,000 in Missouri.

The Anti-Terrorism and Effective Death Penalty Act of 1996 (AEDPA) produced a brief surge in the number of habeas corpus filings by state prisoners, as deadlines imposed by the act encouraged prisoners to file sooner than they might have otherwise done so, but this had run its course by 2000, and by 2004, habeas corpus petition filing rates per 1,000 prisoners was similar to pre-AEDPA filing rates.

There was a temporary surge in habeas corpus petitions filed by federal prisoners in 2005 as a result of the Booker decision by the U.S. Supreme Court.

References

• Federal Habeas Corpus Review (United States Department of Justice 1995)
• Federal Habeas Corpus Relief (Congressional Research Service 2006)

External links

• LectLaw.com
• Petition for Habeas Corpus April 16, 1843 From Texas Tides