History of habeas corpus

¶ … history of Habeas Corpus. There are twelve references used for this paper.

There have been a number of laws that have survived the test of time and continue to influence the legal world. It is important to look at the history of Habeas Corpus and the role it plays in the law today.

The Start of Habeas Corpus

Habeas corpus was first introduced in England in 1215 when the Magna Carta was written. When habeas corpus was first used, it had a limited range. Over time the scope expanded due to jurisdictional disputes between the superior courts and local courts of England.

Habeas corpus cum causa was the form of habeas corpus used by the courts which "compelled the sheriff to produce the prisoner who was the subject of the courts' jurisdictional dispute (Orye, law review)." series of crucial cases which began with the Case of the Five Knights and concluded with the Chamber's Case questioned the "validity of commitments, previously an incidental effect of the writ, making it a major object (Orye, law review)."

The courts as a rule limited the "use of the writ to challenge commitment in criminal cases before conviction. Habeas corpus relief was not available to prisoners held by a valid warrant or pursuant to the execution or judgment of a proper court. A convicted person was not entitled to the privilege of the writ because appeal was the remedy for a conviction contrary to law (Orye, law review)."

Early Beginnings

The English phrase habeas corpus began when a writ of habeas corpus "was a piece of paper served on a government official, saying 'You have the body of a person in prison, and we demand to know by what authority you have this person detained in custody (Unknown, NPR)."

Over the years, the writ of habeas corpus in England became the agent that could challenge in court a random arrest by a king or sheriff.

Many law school professors feel "the writ of habeas corpus was so important to our founding fathers that they incorporated it into the United States Constitution.

Leon Friedman, Professor, Hofstra Law School states 'It sort of has this magical quality. It's a way of challenging tyranny (unknown, NPR)."

American Habeas Corpus

It took until the late 1600's for the British colonies in America to adopt habeas corpus.

When the 1787 Constitutional Convention was convened "three of the twelve state constitutions of the original thirteen colonies had a habeas corpus provision. At the time of the drafting of the Constitution, the Framers viewed habeas corpus as so fundamental that they did not expressly provide for the writ, but instead, because they assumed that people enjoyed the privilege, simply prohibited its abolishment except in certain extraordinary circumstances (Orye, law review)."

Habeas Corpus Act

The Habeas Corpus Act was introduced in 1679 when the English Parliament was pressured by the public to adopt the act as a response to "abusive detention of persons without legal authority (www.fordham.edu/halsall/mod/1679habeascorp.html)."

The act was to "better secure the liberty of the subject, and prevent imprisonment beyond the seas. This writ does not judge whether a prisoner is guilty or not, it is meant to give the prisoner the right to contest whether his or her imprisonment is valid (Kolakowski, Criminal Law).

Habeas Corpus

Habeas Corpus is an order which is issued to the police or any arresting agency by a court, "commanding them to produce the detained person in order to determine the legality of the arrest (www.ferris.edu/htmls/academics/syllabi/mehlerbarry/geninfo/drmnot...)."

The writ of habeas corpus was established to protect against arbitrary imprisonment.

Both state and federal constitutions establish habeas corpus. "Article I, Section 9, of the U.S. Constitution provides that the privilege of habeas corpus shall not be suspended except in cases of rebellion or invasion, when the public safety may require it (www.ferris.edu/htmls/academics/syllabi/mehlerbarry/geninfo/drmnot...).

Most state constitutions have similar stipulations.

Habeas Corpus Defined

The term habeas corpus is Latin for 'you have the body'. A writ of habeas corpus is often filed by prisoners who seek release. A writ of habeas corpus is a "judicial mandate to a prison official ordering that an inmate be brought to the court so it can be determined whether or not that person is imprisoned lawfully and whether or not he should be released from custody (www.lectlaw.com/def/h001.htm)." habeas corpus petition is a "petition filed with a court by a person who objects to his own or another's detention or imprisonment. The petition must show that the court ordering the detention or imprisonment made a legal or factual error (www.lectlaw.com/def/h001.htm)." person serving a prison sentence is the one who usually files a habeas corpus petition.

A habeas corpus petition may be filed by a parent denied custody of his or her child by a trial court or a person who has been declared in contempt of court by a judge or threaten with jail.

The writ of habeas corpus is an important check on the "manner in which state courts pay respect to federal constitutional rights, and is the fundamental instrument for safeguarding individual freedom against arbitrary and lawless state action (www.lectlaw.com/def/h001.htm)."

The Great Writ

The habeas corpus writ is known as the 'great writ' and is not meant to relitigate state trials.

The prevalent analysis on the writ is actually a legal one: "whether the 'petitioner's custody simpliciter' is valid as measure by the Constitution (www.lectlaw.com/def/h001.htm)."

The writ is varied in civil and criminal contexts. It is mainly a "procedure for obtaining a judicial determination of the legality of an individual's custody (www.acorn.net/jfkplace/09/fp.back_issues/17th_Issue/h_corpus.html)."

Criminally it is used by the petitioner to inquire of the court the legality of his or her confinement.

The constitutionality of a state criminal conviction is examined by a writ of federal habeas corpus.

Civilly, the writ is used to "challenge the validity of child custody and deportations (www.acorn.net/jfkplace/09/fp.back_issues/17th_Issue/h_corpus.html)."

Judiciary Act of 1789

Federal courts were given the power to grant the writ of habeas corpus by the Judiciary Act of 1789. This writ was for prisoners who sought to challenge their confining court's jurisdiction or detention by the President without an accurate legal course of action (Kolakowski, Criminal Law). The writ had certain stipulations however, which stated "it only applied to federal prisoners and could only be used to challenge the jurisdiction of the sentencing body (Orye, law review)."

In 1867, there was an expansion of the application of the writ to include state prisoners, although the inquiry was still limited to the sentencing body's jurisdiction.

The Act of 1867 did not clearly define the writ's extent or the procedures connected with it, causing the courts during the late nineteenth century to follow the "common law practice that res judicata did not apply to a dismissed habeas corpus petition, and prisoners were free to successively petition other courts (Kolakowski, Criminal Law)."

This caused confusion when the process for denial became accessible for the petitions, with some state courts "denying habeas corpus appeals based on res judicata, and others using an intermediate approach allowing smaller numbers of successive petitions (Kolakowski, Criminal Law)."

These provisions remained unchanged until the twentieth century (Orye, law review).

Suspension of Habeas Corpus

During the American Civil War, Abraham Lincoln suspended the right of habeas corpus by proclamation in 1861. Congress "explicitly empowered Lincoln to suspend the privilege of the writ during the war in 1863 (www.ferris.edu/htmls/academics/syllabi/mehlerbarry/geninfo/drmnot...)."

Several states have since suspended the privilege when martial law has been declared by state executives during strikes.

Suspension by Lincoln

President Abraham Lincoln was a strong defender of law, liberty and the Constitution, but made some questionable decisions when he "suspended individual liberties, shutting down anti-war and anti-administration newspapers and jailing dissidents (Kleinfeld, 24)." When President Lincoln suspended habeas corpus he obtained "more power than any other individual in America before or since (Kleinfeld, 24)." The force of the President is subject to court regulation with habeas corpus. "With it, a judge can demand that a prisoner be brought before him to evaluate whether the prisoner's detention is legal. Without it, an unlawfully incarcerated individual has no legal remedy. If Lincoln did not constitutionally have the power to suspend habeas corpus, then by doing so he fundamentally altered the freedom of American citizens (Kleinfeld, 24)."

Testing the Issue

On May 26th, 1861, in Baltimore, a case concerning treason tested the issue.

A lieutenant "in a group pledged to armed resistance against the government, John Merryman, petitioned the court for habeas corpus after being seized in his bed at two in the morning and confined at Fort McHenry (Kleinfeld, 24)."

Brevet Major-General George Gadwalader was ordered by Supreme Court by Chief Justice Roger Taney to bring Merryman to court in order to determine if he had indeed been legally imprisoned. This order was refused by the general, and the officer who represented him in court explained "that Merryman was charged with treason and that the general had permission from the president to suspend the writ if he thought it necessary.

Nonetheless, the general 'respectfully requests that you will postpone further action upon this case, until he can receive instructions from the president of the United States' (Kleinfeld, 24)."

Taney refused to abide with request and ordered the general to appear in court, escorted by a marshal. The marshal, however, was not allowed entrance to the fort and was told "that there was no answer to my card (Kleinfeld, 24)," upon which an opinion was issued by Taney.

The suspension of habeas corpus was condemned by Taney.

Chief Justice Taney also denounced "the authorization of a military officer to suspend it according to his judgment, and the martial law that Lincoln created by ignoring the Bill of Rights' protection for a 'person not subject to the rules and articles of war' (Kleinfeld, 24)."

The strongest argument offered by Taney was that President Lincoln exercised a power not given to him by the Constitution, which is detailed in Article I.

When Fort Sumter was fired on in 1861 by the South, President Lincoln made a speech before a special session of Congress to defend his suspension of habeas corpus. He stated "his presidential oath required that he faithfully execute the laws, and then asked, 'are all the laws, but one, to go unexecuted, and the government itself got to pieces, lest that one be violated?' (Kleinfeld, 24)."

Although this was a practical argument, it possessed no legal merit. Lincoln further stated, "It was not believed that any law was violated. The Constitution does not expressly prohibit the president from suspending the writ, and it is unreasonable that a danger should run its course until Congress can be assembled (Kleinfeld, 24)."

Taney had American legal and legislative history to help with his cause. "When President Thomas Jefferson wanted to suspend the writ to deal with Aaron Burr and his co-conspirators, he requested the authorization of Congress; no one suggested that Jefferson could exercise the power without congressional approval (Kleinfeld, 24)."

Chief Justice Marshall's Ex-Parte Bollman and Swartwout was quoted by Taney as additional argument, which stated "If at anytime, the public safety should require the suspension of the powers vested by this act, habeas corpus, in the courts of the United States, it is for the legislature to say so. Significantly, in English law -- the basis for American law -- the power to suspend the writ belongs to Parliament (Kleinfeld, 24)."

It was viewed by some that these arguments did not apply to the case at hand since they referred to a peace-time precedent and Aaron Burr's case was actually a civil rebellion.

The habeas corpus clause in the Constitution referred to the type of conflict exhibited during the Civil War known as 'cases of Rebellion'.

This provided proof that Taney's argument was valid and "Lincoln was not constitutionally entitled to suspend the writ of habeas corpus (Kleinfeld, 24)."

Seizing Power

The laws today which protect individuals from oppression where weakened by the actions taken by Lincoln.

Lincoln ignored judicial authority on constitutionality and took over a Congressional power, thus increasing the "executive branch's power at the expense of the legislative and judicial branches, disturbing the delicate system of checks and balances which protect American citizens from oppression (Kleinfeld, 24)."

Even if a court's orders are wrong, they are binding. Lincoln was required to restore habeas corpus when so ordered by Taney. Another important issue that occurred when Lincoln suspended habeas corpus was he seized a power that was considered too dangerous for the president to control by the Constitution, creating a precedent for future presidents. Lincoln's example could be followed by others who chose to disregard the court's orders.

After the Civil War

In 1867, the modern form of habeas corpus was established when the Federal Judiciary Act was passed by Congress after the Civil War. Congressmen were concerned that "newly freed blacks would be convicted of trumped-up charges in the South, and that there would be no way to review the convictions in federal court, so they created a right to file writs of habeas corpus challenging state convictions in federal courts (unknown, NPR)."

This right continued to expand over the next century. No limitation was placed on the number of habeas-corpus writs allowed to be filed in each case, and although the Supreme Court "cut back dramatically on the right to file writs, the death-row cells across the country continued to bulge with inmates whose cases dragged on five, ten, even 15 years (unknown, NPR)."

Resolution in 1924

In 1924 the confusion of the Act of 1867 was resolved by the Supreme Court with the cases of Salinger v. Loisel and Wong Doo v. United States. These cases clearly determined that "res judicata does not apply to the denial of federal habeas corpus petitions and laid the groundwork for what would later be known as the 'abuse of the writ' doctrine (Kolakowski, Criminal Law)." The Court decided in Salinger that "successive petitions should be disposed of in the exercise of a sound judicial discretion guided and controlled by a consideration of whatever has a national bearing on the propriety of the discharge sought (Kolakowski, Criminal Law)." Some of the concerns which may be taken into account are another remedy's presence, such as natural right for a criminal case appellate review or a previous discharge denial on a similar application.

Salinger's ruling was applied in Wong Doo by the Court. In this instance the petitioner argued one claim, even though his original petition offered two claims. When his petition was denied by the district court, he alleged an abandoned claim in the next petition which was also dismissed by the court.

The lower court's ruling was upheld by the Supreme Court due to the fact the petitioner had been provided sufficient opportunity to present his abandoned claim when the first petition was offered and had not done so. The Court noted "that to reserve the proof for use in attempting to support a later petition, if the first failed, was to make an abusive use of the writ of habeas corpus (Kolakowski, Criminal Law)."

Influence on World War II

During World War II, the Japanese-Americans were deprived of freedom and imprisoned "without just cause, and without, in the applicable words of Merryman's lawyer, 'any shade or color of the law whatsoever' (Kleinfeld, 24)." The Supreme Court during the 1940's refused their requests for habeas corpus, but Roosevelt did not receive the same criticism as Lincoln had previously experienced.

President Lincoln was practical and wrote in the original draft of his July 4th address "More rogues than honest men find refuge under the writ of habeas corpus (Kleinfeld, 24)." There were few citizens who felt stripped of their liberties when the writ was suspended by Lincoln.

Expansion in 1942

The United States Supreme Court expanded habeas corpus in 1942 to encompass attacks on other constitutional grounds. Since then, "habeas corpus provides relief if:

the conviction is void for lack of personal or subject matter jurisdiction the statute defining the offense is unconstitutional, or the conviction was obtained in violation of a federal constitutional right the statute authorizing the sentence is unconstitutional, or the sentence was obtained in violation of a federal constitutional right the sentence is contrary to the applicable statute, in excess of the statutory maximum, or otherwise unauthorized by law the conviction or the sentence is otherwise deemed subject to collateral attack ((Orye, law review)."

Abuse of the Writ

In 1948, abuse of the habeas corpus writ was addressed by the Supreme Court.

The Court held that "the State must be clear and particular in establishing that a petitioner, has abused the writ with a successive petition. If the State met this standard, then the burden shifted to the petitioner to show that he or she had a valid reason for the delay in presenting a new claim (Kolakowski, Criminal Law)." Two examples of valid reasons suggested by the Court were: receiving new significant information, or not realizing the importance of previously known facts.

Total Exhaustion

The total exhaustion rule allows for the dismissal of habeas petition if each claim the petitioner raises is exhausted before the merits of any claim are reached by the district court.

This rule was instituted in the 1982 case of Rose v. Lundy.

The rule forces the habeas petitioner to decide whether to "withdraw the entire petition, try to exhaust the unexhausted claims, and return to federal court months or years later; or proceed solely with the exhausted claims by dropping the unexhausted claims, in the hopes of exhausting them later (Hoffstadt, Duke)."

1991 Decision

In 1991 it was observed that the "Supreme Court has 'recognized the fact that the writ of habeas corpus is the fundamental instrument for safeguarding individual freedom against arbitrary and lawless state action. Therefore, the writ must be 'administered with the initiative and flexibility essential to insure that miscarriages of justice with its reach are surfaced and corrected (www.lectlaw.com/def/h001.htm)."

Limitations

In April of 1996, the anti-terrorism law provisions were enacted to impose limits on death-penalty appeals. A bill was sponsored by Senator Orrin Hatch, the chairman of the Senate Judiciary Committee, to limit writs of habeas corpus. Congress was backed by the Clinton administration on passing this law which states "people have a time limit, after the state review is completed, to file for federal habeas review, and that they get one chance to make all the claims they have (unknown, NPR)."

Senator Hatch stated the great writ which is guaranteed by the Constitution is not interfered with by the new law. Hatch pointed out "if we tried to do that, if would be unconstitutional. The great writ takes care of pre-conviction matters; it does not take care of post-conviction matters (unknown, NPR)."

Hatch stated the law is meant to amend the 1867 Judiciary Act, "which granted the federal courts the authority in post-conviction habeas-corpus cases. Having granted the authority, of course, the Congress which granted the authority has a right to limit that (unknown, NPR)."

Death Penalty and the Supreme Court

The Supreme Court heard the case of Felker vs. Terkin in 1996 to determine whether limits of death-penalty appeals were constitutional. The case affected over 3,000 people that were currently on death row and was pushed ahead of more than a dozen other cases. The case centered on Ellis Wayne Felker who was sentenced to death after being convicted of the rape and murder of a Georgia woman. The case appeared before the Supreme Court, with no success, three times in ensuing years. Felkner continued to protest he was innocent of the crime, and "with his execution just days away, his case became the first test of the new habeas-corpus procedures established in the anti-terrorism law (unknown, NPR)."

The law requires that a "prisoner that has already lost one federal habeas petition cannot file another unless he first gets permission from a federal appeals court. It the appeals court says no, the Supreme Court may not review that decision (unknown, NPR)."

Felker appealed to the Supreme Court after an Atlanta federal appeals court denied him, stating that "under the Constitution, the Congress does not have the power to strip away the Supreme Court's jurisdiction in cases involving core constitutional rights (unknown, NPR)."

Effect on the Government

This case had the ability to have a significant effect on the United States form of government. This was due to the fact that if the Supreme Court decided that Congress "can, without qualification, disable the court from deciding constitutional cases, then that would have enormous significance for the whole structure of the system (unknown, NPR)." Since the Supreme Court is considered the final arbitrator of constitutional issues, the national configuration would be change significantly if Congress were allowed to weaken the Court's essential role as the ultimate mediator.

It was asked why the issue of power over habeas corpus cases was more important than cases concerning things like school-prayer or abortion. Senator Hatch responded that there were already a multitude of rights provided to convicted felons. Hatch noted that any prisoner or convicted person has an opportunity to raise a number of issues concerning his or her confinement, but that a limit of five separate appeals will reduce the time spent on these issues to two to three years under the new reform.

Legal Foundations emphasized that while an individual's rights are focused on during the habeas corpus appeal, the crimes the person has been accused of are completely forgotten, as are the victims and/or their families. They stress the importance of remembering these factors when deciding on habeas corpus appeals.

The Clinton administration defended the new restrictions on habeas corpus in front of the Supreme Court. The one major difference between their argument and Senator Hatch's was the Clinton administration argued that "if for any reason the lower court gets it wrong and refuses to approve a meritorious case for a writ of habeas corpus to the Supreme Court, there is still one failsafe - a provision in another law for a so-called original writ of habeas corpus to be filed directly with the Supreme Court without going to the lower courts first (unknown, NPR)."

This law has not been used since 1925, even though it has been in effect for quite a while. Senator Hatch argued that "the Congress, while it didn't say so explicitly, meant to wipe out that avenue of habeas corpus as well (unknown, NPR)."

The new statute stated that "any second or subsequent habeas corpus petitions must meet a particularly high standard and must pass through a 'gatekeeping' function exercised by the U.S. Courts of Appeals. A circuit court must grant a motion giving the inmate permission to file the petition in a district court, denial of this motion is not appealable to the Supreme Court (web.utk.edu/~scheb/95term.html)."

The Court's Decision

Felker challenged the constitutionality of the provision stating two "constitutional objections: (1) that the new law amounted to an unconstitutional 'suspension' of the writ of habeas corpus; and (2) that the prohibition against Supreme Court review of a circuit court's denial of permission to file a subsequent habeas petition is an unconstitutional interference with the Supreme Court's jurisdiction as defined in Article III of the Constitution (web.utk.edu/~scheb/95term.html)."

The Supreme Court issued a unanimous decision on the case, rejecting the challenges and upholding the statute, less than a month after it was argued before them.

The Court "interpreted the law in such a way as to preserve the right of state prisoners to file habeas petitions directly in the Supreme Court in a 'saving construction' of the statute (web.utk.edu/~scheb/95term.html)." stipulation was placed on the decision stating that only under 'exceptional circumstances' would this jurisdiction be applied. The Court ruled that "the fact that habeas corpus relief remains available by direct petition to the Supreme Court obviates any claim by petitioner under the Exceptions Clause of Article III, Section 2, of the Constitution (web.utk.edu/~scheb/95term.html)."

Chief Justice Rehnquist spoke for the court when he noted "the new restrictions on successive petitions constitute a... restraint on what is called in habeas corpus practice 'abuse of the writ.'

The Chief Justice also noted the evolving body of judicial decisions attempting to limit abuses of habeas corpus and concluded the added restrictions... On second habeas petitions are well within the compass of this evolutionary process...(web.utk.edu/~scheb/95term.html)."

In this case, the Court was able to reiterate its constitutional and statutory powers, while upholding Congress' role.

California and HR 4167

The bill HR 4167 concentrated on post conviction DNA testing in the state of California.

The State's Deputy Attorney General's office would have been responsible for representing the State on "all post trial matters including appeal and habeas corpus (unknown, Cong. Test)."

The California Attorney General's office examined HR 4167, as did twenty-nine other attorneys general, and afterward all expressed concern about its Senate counterpart.

The prosecutors stated they were not opposed to DNA post conviction testing, as this would be "contrary to the prosecutor's special role in the criminal justice system in searching for the truth in criminal cases (unknown, Cong. Test)."

The Attorney General noted that he was not opposed to appropriate DNA post conviction procedures, such as those already in use in New York, Illinois, Oklahoma and Arizona.

HR4167 "preempts the States by imposing a single solution to the DNA issue 'from the top down'.

The bill would have created a new post conviction proceeding independent of the long-established procedures for motions for new trial and petitions for writs of habeas corpus (unknown, Cong. Test)." The bill, however, was not without additional concerns such as a negative impact on States financially and the unnecessary use of DNA testing due to a low limit for testing.

The New York, Illinois, Arizona and Oklahoma DNA post conviction statutes all incorporate a showing of materiality for DNA testing (unknown, Cong. Test)." A materiality component is also recommended by the National Commission on the Future of DNA Evidence.

The Fourteenth Amendment allows a state to deny any testing request which lacks materiality, and state courts "have specifically denied requests for DNA testing because the test results would not have provided 'material' evidence.

In California, a new trial based on newly discovered evidence is not granted absent a showing of materiality nor is habeas corpus relief for newly discovered evidence granted unless the evidence undermines the entire prosecution case and points unerringly to innocence (unknown, Cong. Test)."

It is important to note that HR 4167 died in legislation and did not pass in 2000, many feeling California's appeal process would have to be completely reworked. California's system is not centralized or independent, but is actually part of the judicial system and must report to all three branches of the State government.

The Supreme Court remained the appointing authority, continuing the state's system for appellate and habeas counsel (unknown, Cong. Test).

Handling of Habeas Corpus Proceedings

When the Anti-Terrorism and Effective Death Penalty Act of 1996 (AEDPA) was enacted, Congress provided the opportunity for "expedited handling of habeas corpus proceedings in capital cases if the states established a system for the appointment of qualified and reasonably compensated post-conviction counsel (unknown, Cong. Test)." The provision was enacted when the Ad Hoc Committee discovered lack of experienced post-conviction counsel was the main reason death penalty litigation was delayed.

California mandated "specific standards for the appointment, training, and compensation of state counsel at all stages of state capital proceedings (unknown, Cong. Test)." These standards were adopted by "abrogating the rules of procedural default and the presumption of correctness for state court factual findings when prisoners apply to federal court for petitions for writs of habeas corpus (unknown, Cong. Test)." This allows a defendant who failed to follow a state's procedural rule to still file a claim in federal court.

The federal courts are also allowed disregard any factual findings in evidentiary hearings in a state court, when the claims are renewed by state prisoners in state court.

California Habeas Corpus Resource Center

The State of California created a Habeas Corpus Resource Center in its judicial system which is supervised by an executive director, who chosen by a board of directors consisting of five members. The directors are representatives of a number of appellate tasks and serve the six appellate districts of California. The executive director must also be confirmed by the State Senate.

The "counsel employed by this center are appointed to represent defendants sentenced to death and also employs it own investigators.