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Habeas corpus in the United States

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'Habeas corpus' /, Latin for "you [shall] 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 demands that "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.

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 one believes the arrest is without legal merit and subsequently refuses to come willingly, he still may be guilty of resisting arrest, which can sometimes be a crime in and of itself (even if the initial arrest itself was illegal) depending on the state.

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. 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. 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 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 the U.S. 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 the cases of Immigration and Naturalization Service v. St. Cyr (2001), and Boumediene v. Bush (2008) the U.S. 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. Until 1983] the writ of habeas corpus remained the only way that decisions of military courts could be reviewed by the 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 (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 U.S. Congress grants federal district courts, the 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, if the prisoner –

  • 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 "constitutionalizing" of 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.

Habeas corpus in the 21st Century

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. However in Hamdi v. Rumsfeld (2004) the U.S. Supreme Court re-confirmed the right of every American citizen to access habeas corpus even when declared to be an enemy combatant. The Court affirmed the basic principle that habeas corpus could not be revoked in the case of a citizen.

In Hamdan v. Rumsfeld (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. 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 (MCA) 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 ruled in Boumediene v. Bush that the MCA amounts to an unconstitutional encroachment on 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. Robert Parry wrote 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 the act did suspend habeas and found it unconstitutional.

On June 7, 2007, the Habeas Corpus Restoration Act of 2007 was approved by the Senate Judiciary Committee with an 11–8 vote split along party lines, with all but one Republican voting against it. Although the Act would restore statutory habeas corpus to enemy combatants, it would not overturn the provisions of the AEDPA which set a statute of limitations on habeas corpus claims from ordinary civilian federal and state prisoners.

On June 11, 2007, a federal appeals court ruled that Ali Saleh Kahlah al-Marri, a legal resident of the United States, could not be detained indefinitely without charge. In a two-to-one ruling by the Fourth Circuit Court of Appeals, the Court held the President of the United States lacks legal authority to detain al-Marri without charge; all three judges ruled that al-Marri is entitled to traditional habeas corpus protections which give him the right to challenge his detainment in a U.S. Court.

In July 2008, the Richmond-based 4th Circuit Court rules: "if properly designated an enemy combatant pursuant to the legal authority of the President, such persons may be detained without charge or criminal proceedings for the duration of the relevant hostilities."

On October 7, 2008, US District Court judge Ricardo M. Urbina ruled that 17 Uyghurs, Muslims from China's northwestern Xinjiang region, must be brought to appear in his court in Washington, DC, three days later: "Because the Constitution prohibits indefinite detentions without cause, the continued detention is unlawful.”

On January 21, 2009, US President Barack Obama issued an executive order regarding the Guantanamo Bay Naval Base and the individuals held there. This order asserted that "[they] have the constitutional privilege of the writ of habeas corpus".

Regarding U.S. Citizens accused of supporting terrorism, senator Lindsey Graham has stated before the senate, "When they say, ‘I want my lawyer,’ you tell them: ‘Shut up. You don’t get a lawyer. You are an enemy combatant, and we are going to talk to you about why you joined Al Qaeda.’"

– U.S. Senator Lindsey Graham, 2011

Following the 1 December 2011 vote by the United States Senate to reject an NDAA amendment proscribing the indefinite detention of U.S. citizens, the ACLU has argued that the legitimacy of Habeas Corpus is threatened: "The Senate voted 38-60 to reject an important amendment [that] would have removed harmful provisions authorizing the U.S. military to pick up and imprison without charge or trial civilians, including American citizens, anywhere in the world... We’re disappointed that, despite robust opposition to the harmful detention legislation from virtually the entire national security leadership of the government, the Senate said ‘no’ to the Udall amendment and ‘yes’ to indefinite detention without charge or trial." The New York Times has stated that the vote leaves the constitutional rights of U.S. citizens "ambiguous," with some senators including Carl Levin and Lindsey Graham arguing that the Supreme Court had already approved holding Americans as enemy combatants, and other senators, including Dianne Feinstein and Richard Durbin, asserting the opposite.[47]

Differences in post-trial actions

Habeas corpus is an action often taken after sentencing by a defendant who seeks relief for some perceived error in his criminal trial. There are a number of such post-trial actions and proceedings, their differences being potentially confusing, thus bearing some explanation. Some of the most common are an appeal to which the defendant has as a right, a writ of certiorari, a writ coram nobis and a writ of habeas corpus.

An appeal to which the defendant has a right cannot be abridged by the court which is, by designation of its jurisdiction, obligated to hear the appeal. In such an appeal, the appellant feels that some error has been made in his trial, necessitating an appeal. A matter of importance is the basis on which such an appeal might be filed: generally appeals as a matter of right may only address issues which were originally raised in trial (as evidenced by documentation in the official record). Any issue not raised in the original trial may not be considered on appeal and will be considered waived via estoppel. A convenient test for whether a petition is likely to succeed on the grounds of error is confirming that (1) a mistake was indeed made (2) an objection to that mistake was presented by counsel and (3) that mistake negatively affected the defendant’s trial.

A writ of certiorari, otherwise known simply as cert, is an order by a higher court directing a lower court to send record of a case for review, and is the next logical step in post-trial procedure. While states may have similar processes, a writ of cert is usually only issued, in the United States, by the Supreme Court, although some states retain this procedure. Unlike the aforementioned appeal, a writ of cert is not a matter of right. A writ of cert will have to be petitioned for, the higher court issuing such writs on limited bases according to constraints such as time. In another sense, a writ of cert is like an appeal in its constraints; it too may only seek relief on grounds raised in the original trial.

A petition for a writ coram nobis, is a post-judgment attack on the outcome of the case. It is made to the trial court and claims that there are errors requiring the court to set aside the verdict and/or the sentence. Use of the writ coram nobis varies from jurisdiction to jurisdiction. However, in most jurisdictions it is limited to situations where a direct appeal was not previously possible—usually because the issue was simply unknown at the time of appeal (that is, a "latent" issue) or because the issue otherwise could not be raised on appeal because of procedural barriers. A common basis for coram nobis petitions is the claim of ineffective assistance of counsel where the alleged ineffectiveness is not shown on the record of the court. In such cases, direct appeal is usually impossible because the critical events are not visible on the record where the appellate court can see them. Thus, a prompt coram nobis petition might be an important vehicle for a defendant to use.

A writ of habeas corpus is often the last opportunity for the defendant to find relief against his guilty conviction. Habeas corpus may be pursued if a defendant is unsatisfied with the outcome of his appeal and has been refused (or did not pursue) a writ of cert, at which point he may petition one of several courts for a writ of habeas corpus. Again, these are granted at the discretion of the court and require a petition. Like appeals or writs of cert, a writ of habeas corpus may overturn a defendant's guilty conviction by finding some error in the original trial. The major difference is that writs of habeas corpus may, and often, focus on issues that lay outside the original premises of the trial, i.e., issues that could not be raised by appeal or writs of cert. These often fall in two logical categories: (1) that the trial lawyer was ineffectual or incompetent or (2) that some constitutional right has been violated.

As one moves farther down the chain of post-trial actions, relief becomes progressively more unlikely. Knowing the differences between these actions and their intended use are an important tool in increasing one's chances for a favorable outcome. Use of a lawyer is therefore often considered advisable to aid one attempting to traverse the complex post-trial landscape.

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.


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