The scope and strength of the habeas corpus doctrine in the U.S. has been declining for several years, and its future is more uncertain than ever. (iStock.com/zimmytws)
Since the founding of the nation, America has created legal processes to avoid miscarriages of justice: people locked up in prison cells for years or decades despite serious doubts about their guilt, prisoners on death row who didn't have a fair trial, criminal convictions based on faulty evidence or coerced confessions.
The process of habeas corpus, which traces its origins to centuries-old English jurisprudence and the Magna Carta, has long been a last resort for incarcerated people challenging their detention, and to many, a narrow trail to escape the death penalty.
But the Great Writ, as the legal doctrine is often called, has been on a declining trajectory in the U.S. for several decades. With no signs that Congress will use its power to shore up the habeas process, and a Supreme Court bent on limiting its scope, the future of habeas corpus — and that of thousands of prisoners challenging unconstitutional imprisonment — is more uncertain than ever.
Ira P. Robbins, a habeas corpus scholar and professor at American University's Washington College of Law, told Law360 that the scope of federal habeas has been increasingly narrowed to deal with mostly procedural technicalities rather than the constitutional errors it was designed to address.
"This is not a good time to be a prisoner. Not that it ever is. But there used to be some hope for review on the merits," Robbins said. "Today, there really isn't."
Several decisions in recent years have signaled the U.S. Supreme Court's intention to curb federal habeas. One of them came down in May in Shinn v. Ramirez , in which the court blocked two Arizona death row inmates from presenting evidence to a federal court showing their state trial attorneys were ineffective to the point of violating their constitutional rights to a fair trial.
"It's another sign that the Supreme Court is determined to disable federal habeas relief as a meaningful way of enforcing constitutional rights," Lee Kovarsky, a professor at the University of Texas School of Law and leading scholar of the death penalty and habeas corpus, told Law360 after the decision. "This is a horrible day for the Sixth Amendment."
Law360 talked to some of the country's leading experts on habeas corpus to get a snapshot of its current use, history and possible evolution.
A Process to Challenge Unjust Detention
Habeas corpus originated in England as a process for people to challenge unjust arrest or detention. It then evolved in American law into the primary remedy to challenge constitutional errors occurring during a trial or sentencing.
"It is designed as a tool to bring a person who is being held in custody before a court in some way, often to have a day in court, where the state has to justify the reasons it's detaining someone," Eve Brensike Primus, a scholar at University of Michigan Law School, told Law360.
The extent of that theory has changed over time, and habeas corpus has been applied to challenge detention in various contexts. It has been used in cases of people who have been imprisoned by the United States without trial, such as in the case of terrorism suspects confined at Guantánamo, or by noncitizens detained by immigration authorities while their proceedings are pending.
The other major bucket of habeas proceedings involves state prisoners challenging their detention or sentences on claims that their federal constitutional rights were violated during state court trials.
In 1948, Congress revised its habeas statutes to simplify the process and give federal prisoners a way to challenge their convictions.
The heyday of habeas corpus came in the 1960s with the Warren Court. Three Supreme Court decisions in 1963 — Fay v. Noia, Townsend v. Sain and Sanders v. United States — further made habeas corpus an effective remedy, each giving federal courts broader grounds to review state cases.
At its peak, habeas corpus could be used to cure a vast array of constitutional violations, from inadequate assistance of counsel, to Brady violations, to forced confessions and other failures of due process. A Brady violation is the failure by prosecutors to hand over potentially exculpatory evidence to defense attorneys.
But that changed in the 1970s. Justice William Rehnquist became a dissenter in high court decisions that strengthened habeas corpus, and after he became chief justice in 1986, jurisprudence on habeas took a sharp turn. A series of decisions starting in 1989 with Teague v. Lane, where the court said new rules of criminal procedure largely do not apply retroactively to cases on collateral review, made it harder for prisoners to access federal habeas corpus when they hit procedural defaults under state rules.
The Supreme Court began to develop doctrines of "procedural default" and exhaustion that created circumstances in which state prisoners would be barred from accessing federal courts to question the constitutionality of their detention.
Procedural defaults have proved to be major hurdles for state prisoners, including those on death row who have continued to profess innocence. In the 1993 Supreme Court decision in Herrera v. Collins, a 6-3 justice majority held that a former U.S. Navy Vietnam veteran accused of two murders didn't have a right to challenge the death penalty through habeas corpus based on evidence he claimed implicated his brother and proved his own innocence.
"Claims of actual innocence based on newly discovered evidence have never been held to state a ground for federal habeas relief absent an independent constitutional violation occurring in the course of the underlying state criminal proceedings," Justice Rehnquist wrote in the majority opinion.
The prisoner, Leonel Torres Herrera, was executed four months after that decision.
"Make no mistake about this; I owe society nothing," he said in his last statement, according to a transcript published by the Texas Department of Criminal Justice. "I am an innocent man, and something very wrong is taking place tonight. May God bless you all. I am ready."
The Long Shadow of AEDPA
In the wake of the 1995 Oklahoma City bombing, Congress restricted habeas corpus severely by enacting the Antiterrorism and Effective Death Penalty Act, or AEDPA, of 1996.
Despite the law's name, most of the anti-terrorism provisions were stripped out before it was enacted. But the effect of the law on the habeas process was profound. It codified some aspects of the process into law and added new provisions limiting access to habeas relief by state prisoners.
Because death row inmates represent only a small fraction of the total prison population, the statute had a much deeper impact on non-capital prisoners.
"AEDPA became a habeas corpus reform law," Robbins said. "Some people would say it became a habeas corpus evisceration law."
Brian R. Means, a prominent post-conviction review expert and author of two treatises on habeas corpus, said AEDPA left some aspects of habeas corpus untouched. For instance, federal courts still review de novo — namely without deference to state courts — claims that state courts have not yet adjudicated.
But when a state court has decided a claim on its merits, AEDPA makes it much harder for a prisoner to seek relief in federal habeas. State court judgments are given large deference and any federal court examining habeas claims must conclude that those judgments were unreasonable, in order to grant relief to a state prisoner
"The federal court only gets to essentially grade the state courts on a pass-fail basis," Primus said. "Even if you managed to maneuver through the procedural labyrinth … it's only if you can satisfy that really high bar that you can get relief under AEDPA."
The Antiterrorism and Effective Death Penalty Act of 1996 modified Title 28 of the U.S. Code to create procedural hurdles for state prisoners seeking relief in federal habeas corpus.
The law set up other procedural barriers. It denies relief when state prisoners fail to raise constitutional claims at a certain time, imposes a one-year statute of limitations, and restricts the type of evidence prisoners can use to support the claims.
Those hurdles often give rise to a Catch-22 for state prisoners, said James S. Liebman, a professor at Columbia Law School and leading scholar on habeas corpus and the death penalty.
"AEDPA made it incredibly hard to get a hearing to be able to put on the facts to show that somebody hid the evidence of your innocence, or that your attorney was so incompetent that she didn't go out and find the evidence that would have shown that," Liebman said.
For over a quarter century, habeas jurisprudence has focused on how to interpret AEDPA. Legal scholars say it has taken that much time for the statute to be fully understood and interpreted, because of its complex interaction with state criminal procedures.
Robbins estimated that, from 1996, when the law was enacted, to 2016, the Supreme Court heard between 100 and 150 habeas cases in full review. That's as many such cases as the court had taken in the previous 100 years.
"AEDPA required a lot of interpretation," Robbins said. "I think we're at the point now where either there are very few provisions of AEDPA left that require interpretation, or the Supreme Court thinks that the lower federal courts can take care of it."
Robbins noted that the court agreed to hear only two cases involving habeas corpus in the current term, and did the same last year. Twenty years ago, the high court's docket could have contained eight to 10 cases each term, for several years.
"The Supreme Court's attention to habeas corpus has certainly waned," he said.
The fact that it took so long for jurisprudence to settle around AEDPA makes it less likely that Congress will make changes to it or consider repealing it. Nor would that be easy politically.
Since the statute was passed with broad bipartisan support and signed into law by President Bill Clinton, a Democrat, the perception has been that habeas is deeply intertwined with capital punishment. Because habeas corpus is one of the primary ways to challenge a death sentence, many politicians don't want to be seen as favoring a death row inmate's claims.
"If they argue in favor of repealing AEDPA, the spin by their opponent is that they are pro-crime, anti-death penalty," Robbins said.
The deep polarization of today's national politics makes it even more unlikely that Congress will decide to look into AEDPA soon.
One Writ Away From Death
In death rows across the country, prisoners have turned to habeas corpus as a last resort to avoid execution. Many of them continue to profess their innocence.
David Martinez Ramirez and Barry Lee Jones, the two defendants at the center of the case the Supreme Court decided on May 23, both filed habeas corpus petitions claiming their state trial attorneys and the ones who assisted them post-conviction botched their defenses in ways that violate their Sixth Amendment rights.
During the habeas corpus proceedings, Jones' federal defenders produced new medical examiner testimony and witness reports that cast serious doubts he was the person who raped and killed his ex-girlfriend's 4-year-old daughter. Jones has continued to profess his innocence. The Ninth Circuit agreed the new evidence showed poor representation by Jones' state trial attorneys violated the Constitution, and ordered that he either be retried or released.
In Ramirez's case, federal defenders found that his state trial attorneys failed to obtain evidence that pointed to significant mitigating circumstances, including evidence that he was intellectually disabled and therefore ineligible for the death penalty under Atkins v. Virginia. In this case, the Ninth Circuit said Ramirez had a right to a habeas hearing.
Prosecutors in both cases said they ran afoul of state procedural defaults by failing to raise ineffective counsel claims in post-conviction review, as mandated by Arizona law.
The Supreme Court decided that under AEDPA, Ramirez and Jones couldn't show a federal habeas court evidence that was not already part of the state record. In doing so, the justices gutted a rule it established in 2012 in Martinez v. Ryan, which allowed prisoners to sidestep procedural defaults if they could show that in addition to their state court's counsel, their post-conviction lawyers were also constitutionally inefficient.
Ramirez and Jones remain on death row and although no execution date has been set yet, the attorney who argued on their behalf before the high court, Robert Loeb of Orrick Herrington & Sutcliffe LLP, said their path to avoid death is narrowing.
"They have very, very limited options," he said.
Scholars say many state prisoners who have constitutional violations in their cases are executed because AEDPA prevents them from being able to show there was a prejudicial constitutional violation in their cases.
"People are getting executed, though they were convicted or sentenced in a way that the Constitution forbids," Liebman said. "That's a tragedy."
Studies conducted by Liebman in the early 2000s capturing all capital verdicts imposed from 1973 until the end of 1995, before AEDPA was enacted, found that 68% — more than two-thirds — of death sentences were overturned by state appeal courts or federal habeas courts based on serious errors found in convictions or sentencing.
The two most common errors prompting the reversals were incompetent defense lawyers who demonstrably missed crucial evidence that the defendant was innocent or did not deserve the capital punishment, and police or prosecutors who found mitigating evidence but suppressed it.
A 2018 study, led by Frank R. Baumgartner, a political scientist and professor at the University of North Carolina at Chapel Hill, found that the reversal rates that emerged in Liebman's study have continued until today.
The number of reversed death sentences has kept relatively steady despite the passage of the Antiterrorism and Effective Death Penalty Act of 1996, which was touted as a way to bring finality to state criminal proceedings. Reversals briefly peaked in the early 2000s following two Supreme Court decisions that limited the application of the death penalty. The reversals decline since 2010 coincides with a drop in death sentences along the same period.
The study, which looks at the number of people on death row every year from 1972 to the present, shows that capital sentence reversals remained high after AEDPA was enacted, and peaked significantly in the mid-2000s, most likely due to the effect of the Supreme Court's decisions in Atkins and Roper v. Simmons, which said imposing the death penalty for crimes committed while under the age of 18 is unconstitutional.
"AEDPA definitely achieved its goal of making things hard and closing some avenues," but attorneys found other ways to get clients off death row, Baumgartner said.
The most up-to-date report on capital punishment by the U.S. Department of Justice's Bureau of Justice Statistics, collecting capital punishment data from 1973 until 2020, shows the time elapsing between a death sentence and its execution stretched from an average of 11 years to around 20 years since AEDPA was enacted.
"Clearly, AEDPA did not speed up the cases. In fact, it ended up delaying the cases," Liebman said. "But it never was the goal of AEDPA to speed up the cases. The goal was to stop courts from reversing capital sentences, because it was embarrassing to the states. They didn't like it."
The average time between a capital sentence and execution has more than tripled since the 1980s, despite the enactment of the Antiterrorism and Effective Death Penalty Act of 1996, which sought to curtail federal review of state death penalty cases to ensure a more swift carrying out of death sentences.
Average time between sentencing and execution
The Role of Habeas in Improving the System
There are currently three competing schools of thought on habeas in the United States, none of which has so far prevailed. One is that habeas corpus should be available as a remedy only to people who are actually innocent. A second one says that anytime the Constitution has been violated, habeas corpus should come in to remedy the violation. A third one is that even if there were errors in a trial or sentencing, habeas corpus shouldn't fix them, as long as the process was generally fair in itself.
Joseph L. Hoffmann, a professor and habeas corpus scholar at Indiana University, Bloomington's Maurer School of Law, said support for habeas in legal academia comes from the idea that federal judges are more trustworthy and better at finding constitutional problems in criminal cases than their state court counterparts.
"That's kind of where a lot of the really strong advocacy for habeas comes from," he said. "I've never been really able to fully buy into this notion that the whole argument for expanding or for preserving federal habeas in its current form, is that we can't trust state judges."
Hoffmann said the criminal justice system needs substantial improvement, but questioned whether the habeas corpus process can be used to fix it.
While society puts more attention on innocence cases, which represent only a small fraction of convictions, there is a massively larger share of cases involving constitutional errors. Overworked or incompetent defense attorneys, and aggressive prosecutors leveraging long sentences to push defendants to plead guilty, contribute to an erosion of due process, he said.
"Our current system has done very little at the front end to try to fix this problem," he said. "The cases make their way through the system. And then when they're all done, you know, we have this thing at the back end, called habeas corpus."
Hoffmann said the focus of criminal justice reform should be on improving the quality of defense lawyering so that constitutional issues are raised and litigated in the moment they're happening, rather than relying on habeas corpus to fix botched proceedings.
A 2007 study co-led by Hoffmann and Nancy J. King, a legal scholar at Vanderbilt Law School, showed that the success rate of habeas petitions was extremely low.
Out of 2,384 sampled non-capital habeas petitions filed between 2001 and 2003, only seven petitioners received relief — a rate of 1 in every 341. Before AEDPA was enacted, the reported rate of relief was one in every 100 petitions.
Habeas corpus plays a significantly different role in death penalty cases than it does in non-capital cases. Capital defendants turn to habeas as a last resort, short of a pardon, to get out of death row or at least to buy time until the execution. Non-capital prisoners use habeas as a way to challenge their convictions, often frivolously, according to experts.
Although some of the most publicized habeas cases involve death row inmates, capital cases only represent a minor fraction, 5%, of the total prison population. Unlike death row inmates, state prisoners in non-capital cases do not have a constitutional right to an attorney to assist them in habeas corpus proceedings. That means a large portion of prisoners file pro se habeas petitions.
Hoffmann said that it makes habeas corpus prone to be abused and that many of the pro se prisoners are filing meritless petitions.
"If you're someone who's just been convicted, and you're sent to prison, why wouldn't you file something like that? You don't have to pay for it. There's no financial reason why you wouldn't do that," Hoffmann said. "And now we've got this stack of petitions showing up in the federal judge's chambers, and they have to look through them all and try to figure out if any of them actually have merit."
The huge influx of meritless petitions — in the tens of thousands each year — has made the process burdensome, expensive and inefficient, Hoffmann said.
Jamie Orenstein, a former federal magistrate judge who said he reviewed 15 to 20 habeas cases throughout his 16-year tenure in the U.S. District Court for the Eastern District of New York, said the procedural hurdles Congress set in place, mostly through AEDPA, are meant to weed out these frivolous habeas petitions.
"You've got all these people sitting in jail, validly convicted. They've got nothing better to do than try and take another shot at getting some relief. And they really do flood the courts with a lot of petitions that need to be resolved," said Orenstein, now a senior legal director at ZwillGen.
But the trade-off is that the procedural obstacles in AEDPA also get in the way of those petitions that do have merit, slowing down the process to find them, he said.
Orenstein said the reliance on federal habeas corpus is based on an acceptance that people who shouldn't be punished will be. The justice system should focus on preventing unjust convictions, he said. But a strong habeas corpus process should also be in place to ensure that constitutional errors, when they occur, can be cured later.
"The problem is framing it as a binary choice," Orenstein said. "We should do both."
What's in Store for Habeas
Legal scholars all agree that with the current Supreme Court, habeas corpus is not going to be expanded anytime soon. The arrivals of Justices Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett have solidified a conservative, federalist-minded majority that is more likely to refuse to disturb convictions and sentences imposed by state courts.
Twice this term, first in its April 21 ruling in Brown v. Davenport, then in Shinn v. Ramirez, the court further cemented AEDPA's control over the habeas process.
In Brown v. Davenport, the court ruled with another 6-3 vote that a federal court cannot grant habeas relief in a case where state courts have ruled on the merits of a prisoner's constitutional claims without applying the "fair-minded jurist" test prescribed by AEDPA.
Since habeas is inextricably tied to AEDPA, it would fall on Congress to make the next move.
Brandon L. Garrett, a scholar at Duke University School of Law, said legislators could start by eliminating the statute of limitations imposed by the law. Other portions of the statute that limit relief would be harder to fix, he said.
"It's kind of a qualified immunity, where a federal judge can say, 'Oh, yes, your constitutional rights were clearly violated, but not clearly violated enough,'" he said. "That's deeply offensive to scholars and lots of judges who feel like their central Article III role is to remedy violations of the Constitution."
But political will around tweaking the statute is nearly nonexistent. Interest in a revision of the law flared several years ago, but ended up nowhere, in part because of backlash from federal judges who opposed the idea of changing provisions it had taken two decades of court decisions to understand and interpret.
"The judges really didn't want to see this happen." Means said. "They really weren't ready for another change to the statutes that would put them back at ground zero again."
Today, interest in either further strengthening, loosening or repealing AEDPA is absent on both sides of the aisle.
"I can't see anything in the near future," Means said.
Meanwhile, the weakening of federal habeas corpus brought by recent high court decisions means that prisoners will likely more often challenge their detention in state post-conviction courts, a process called state habeas corpus, or collateral review. That can be an uphill battle for prisoners, scholars say.
"Many state judges are elected rather than appointed. And elected state judges often have to look over their shoulder toward their reelection," Robbins said. "So to grant habeas corpus or to grant state post-conviction relief, which some states call state habeas corpus, can be political suicide for them."
Politics aside, scholars worry that weakening federal habeas means there is little oversight on the way state courts conduct their proceedings.
Liebman said the lack of a strong habeas process undermines the deterrence effect the law is supposed to provide against errors and constitutional violations. He compared the justice system to a production assembly line with quality checks along the way and where federal habeas stays at the end. Once the final check is removed, the intermediaries are more likely to let constitutional errors go unchecked.
"There's nobody who's going to review those kinds of errors that the state courts committed," Liebman said. "And they're going to commit more of them because there's no accountability."
Robbins, Liebman and Primus are among a contingent of legal scholars who think that habeas corpus should be expanded, or at the least, that AEDPA should be repealed. They also think it's unlikely that would happen in the current political environment.
King and Hoffmann have argued in their study and commentaries that given the high cost and low success rate of federal habeas, resources should be shifted from habeas litigation to a "federal initiative aimed at helping the states prevent and correct constitutional violations in their own courts."
King declined to be interviewed for this story.
Some states have taken steps to strengthen their post-conviction review processes in the last two decades. North Carolina pioneered states' experimentation in "innocence commissions" that analyze criminal cases post-conviction, and recommend the credible ones to state judges for habeas review.
Since 2007, when it began operating, the North Carolina Innocence Inquiry Commission, a purportedly neutral state agency made up of members appointed by the state's judicial leaders, has received over 3,200 claims, 51 of them this year until the end of March. Of the total number of cases, 3,130 have been closed. Only 15 of them ended with exonerations.
Other states have created similar commissions.
Hoffmann acknowledged that state innocence commissions or nonprofits like the Innocence Project are only geared toward overturning convictions in cases of actual innocence, but those cases are only a slim minority. The majority of habeas corpus cases involve people who may be guilty, but for various reasons — ineffective counsel, fabricated evidence, Brady violation, breaches of due process — might still have a shot of being retried, resentenced or released from prison.
Despite that, Hoffmann thinks federal habeas cannot perform the error-finding functions its supporters say it should have.
"One out of several 100 people who file these petitions actually wins the lottery and get some kind of relief," he said. "Isn't there a better way? That's really the question."
John H. Blume, a professor of criminal procedure at Cornell University Law School, called Hoffmann and King's argument for relying on state habeas processes "incredibly optimistic" given the influence of politics on the behavior of judges in many states where they are elected rather than appointed.
"The idea that they're going to give them money, and they're going to look at cases more closely, I think is a severe case of wishful thinking," he said.
For that reason, it's crucial that federal habeas continues to provide oversight and accountability, he said.
Primus agreed. "I think that would be a drop in the bucket towards fixing some of the problems that we have," she said. "It's an interesting idea, I just don't think practically it will have the effects that you would want."
But Hoffmann said the idea should be given some serious consideration.
If the habeas corpus process is to continue to exist in the future, he said, there is a valid argument that the inquiries federal habeas courts now conduct on state court proceedings should instead be carried out by "outsiders," such as organizations like the Innocence Project that are not part of the justice system, or the quasi-independent innocence commissions created by a handful of states. The reasons are both structural and psychological, he said.
"Anybody who's part of the system is not really well situated to look at a case and say, 'You know what? I think we all got this wrong,'" Hoffmann said.
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--Graphics by Ben Jay and Jonathan Hayter. Editing by Robert Rudinger.