Habeas Corpus and Due Process

The writ of habeas corpus and the right to due process have long been linked together, but their relationship has never been more unsettled or important. Following the September 11, 2001 attacks, the United States detained hundreds of suspected terrorists who later brought legal challenges using the writ. In the first of the landmark Supreme Court cases addressing those detentions, Hamdi v. Rumsfeld, the plurality chiefly relied on the Due Process Clause to explain what procedures a court must follow. Scholars assumed due process would govern the area. Yet in Boumediene v. Bush, the Court did not take the due process path and instead held that the Suspension Clause extended habeas corpus process to noncitizen detainees at Guant ´ anamo Bay. Boumediene correctly grounded the analysis in the Suspension Clause, not the Due Process Clause. The Court held that the Suspension Clause demands a traditional habeas process, simply asking whether the detention is legally and factually authorized. This view challenges the set of standards that judges currently use in executive detention cases and also has implications for domestic habeas; it could ground innocence claims in the Suspension Clause. More broadly, this Suspension Clause theory reflects commonalities in the structure of statutes and case law regulating habeas corpus across its array of applications to executive detention and postconviction review. Habeas review now plays a far more central role in the complex regulation of detention than scholars predicted, because habeas review does not depend on underlying due process rights. A judge instead focuses on whether a detention is authorized. As a result, habeas review can inversely play its most crucial role when prior process is inadequate. Put simply, the Suspension Clause can ensure that habeas corpus begins where due process ends

The American Bar Association and Federal Habeas Corpus

Yackle evaluates the ABA\u27s claims touching federal habeas corpus in death penalty cases. Neither the Supreme Court nor the Anti-Terrorism and Effective Death Penalty Act of 1996 embrace the ABA\u27s policy for habeas corpus

Habeas Bargaining

Habeas Bargaining: This paper asks whether defendants exchange their habeas rights in return for shorter sentences much as they do with their trial rights in plea bargains. It finds that federal defendants frequently do so when they plead guilty and that some state and federal prisoners even do so after conviction and sentencing if they have identifiably serious state or federal habeas claims. However, such "habeas bargains" are not as common as ordinary plea bargains. The paper offers a number of explanations, e.g., that state prosecutor offices are structured such that they do not internalize the benefits of habeas bargains and that the rigidity of the U.S. Sentencing Guidelines and mandatory minimums in federal criminal statutes rules out many sentencing compromises at the federal level. However, it ultimately finds that there are a significant number of cases where bargains could have been struck but were not because the parties simply did not think to trade habeas rights. The paper concludes with a recommendation that defense attorneys and prosecutors more frequently consider bargaining over habeas rights because such deals can mitigate the growing overall cost of habeas litigation. Moreover, courts ought to treat the resulting agreements much as they do plea agreements, i.e., screen them ex ante with Rule 11-type colloquies and enforce them ex post so long as they are voluntary and knowing.

Habeas Bargaining

Habeas Bargaining: This paper asks whether defendants exchange their habeas rights in return for shorter sentences much as they do with their trial rights in plea bargains. It finds that federal defendants frequently do so when they plead guilty and that some state and federal prisoners even do so after conviction and sentencing if they have identifiably serious state or federal habeas claims. However, such "habeas bargains" are not as common as ordinary plea bargains. The paper offers a number of explanations, e.g., that state prosecutor offices are structured such that they do not internalize the benefits of habeas bargains and that the rigidity of the U.S. Sentencing Guidelines and mandatory minimums in federal criminal statutes rules out many sentencing compromises at the federal level. However, it ultimately finds that there are a significant number of cases where bargains could have been struck but were not because the parties simply did not think to trade habeas rights. The paper concludes with a recommendation that defense attorneys and prosecutors more frequently consider bargaining over habeas rights because such deals can mitigate the growing overall cost of habeas litigation. Moreover, courts ought to treat the resulting agreements much as they do plea agreements, i.e., screen them ex ante with Rule 11-type colloquies and enforce them ex post so long as they are voluntary and knowing

Habeas Without Rights

For almost six years, the habeas corpus petitions brought by foreign detainees held by the United States at Guantanamo Bay, Cuba, have stalled because the courts have struggled to answer a single question: whether the detainees possess enforceable rights. Although that question remains unresolved, the courts have uniformly concluded that the Guantanamo habeas claims, as well as the habeas claims brought by other accused enemy combatants, require a showing that the detainees possess cognizable rights violated by the detentions, most especially constitutional rights. This Article argues that the courts have been asking the wrong question and that habeas relief does not require the possession of rights. For most of the long history of habeas corpus, courts resolved habeas claims by determining whether the jailer had authority to impose detention, without undertaking any inquiry into the petitioner’s rights. Habeas did not address “rights” in the modern sense of a discrete group of personal trumps against governmental action, such as those protected by the Bill of Rights. Habeas did not protect rights in this sense for a simple reason: habeas predates rights. Rather than addressing rights, habeas cases traditionally were framed in terms of power: “The question is,” Justice Marshall asked in Ex parte Burford, “what authority has the jailor to detain him?” In the Guantanamo detainee cases, the traditional habeas inquiry would require the government to establish, as a matter of fact and law, that the detainees are enemy combatants

Reconciling Classified Evidence and a Petitioner\u27s Right to a Meaningful Review at Guantanamo Bay: A Legislative Solution

In Boumediene v. Bush, the U.S. Supreme Court determined that the detainees held at Guantánamo Bay have a constitutional right to a writ of habeas corpus and are entitled to a “meaningful review” of their habeas petitions. This Note attempts to reconcile the need for a “meaningful review” with the government’s reliance on classified evidence that is completely inaccessible to the detainee-petitioners. After examining three other contexts in which the reliance on classified evidence has been sanctioned—federal criminal courts, immigration cases, and the ongoing military commissions at Guantánamo—this Note concludes that a “meaningful review” of the Guantánamo habeas petitions requires that the detainees be provided with regulated access to the evidence against them. Specifically, this Note recommends that the Classified Information Procedures Act (CIPA) or a CIPA-like statute be adapted to the habeas context so that detainees have, at a minimum, summaries of the key evidence against them

Habeas Corpus and State Sentencing Reform: A Story of Unintended Consequences

This Article tells the story of how fundamental shifts in state sentencing policy collided with fundamental shifts in federal habeas policy to produce a tangled and costly doctrinal wreck. The conventional assumption is that state prisoners seeking habeas relief allege constitutional errors in their state court convictions and sentences. But almost 20 percent of federal habeas petitions filed by noncapital state prisoners do not challenge state court judgments. They instead attack administrative actions by state prison officials or parole boards, actions taken long after the petitioner's conviction and sentencing. Challenges to these administrative decisions create serious problems for federal habeas law, which is designed to structure federal review of state court judgments and is ill suited to review administrators' actions. Courts find themselves trying to squeeze square pegs into round holes, and the confusion is particularly intolerable given the stakes for prisoners, state prison systems, and federal courts. This Article is the first to identify this significant problem, to analyze its disparate and complicated causes, and to propose a simple and rational way for Congress to respond

Habeas Corpus Standing Alone: A Reply to Lee B. Kovarsky and Stephen I. Vladeck

The differences between habeas corpus and due process are important. The Due Process Clause, among other things, regulates the procedures that the government must use before it detains a person and holds the person in custody. But the Suspension Clause safeguards a more elemental habeas privilege. That is, under the Suspension Clause, the judge examines the bare question of whether a person is being held in custody legally. In Habeas Corpus and Due Process, I focus on the independent role of the habeas process. The deep confusion between habeas corpus and due process arises from a critical area of overlap: the habeas judge may examine not only the bare lawfulness of the custody, but also whether officials complied with required procedures to detain the person, including due process requirements

Federal Habeas Corpus and Ineffective Representation of Counsel: The Supreme Court Has Work To Do

The availability of federal habeas corpus relief for state criminal defendants has always borne a complex relationship to state rules barring defendants from litigating constitutional claims in state court because of procedural defaults in raising those claims. The Warren Court\u27s landmark attempt to resolve this relationship was the 1963 decision in Fay v. Noia, which asserted that a state procedural forfeiture rule could not bar federal habeas review of a constitutional claim unless the defendant had deliberately bypassed the procedural opportunity to raise the claim; the Court defined deliberate bypass in terms of a defendant\u27s intentional and voluntary relinquishment of a known right. Even when, 2 years later, in Heny v. Mississippi, the Warren Court ruled that state procedural defaults could bar post-conviction state review as well as direct Supreme Court review of a federal claim, it left open the Fay avenue to federal habeas relief. But the Warren Court left several crucial questions unresolved for lower courts. Did the defendant or the attorney control the defense case for the purposes of habeas law? If counsel\u27s decision not to raise a constitutional claim by objecting at trial could eliminate the defendant\u27s right to get all state post-conviction review and direct review by the Court, could that decision also ever eliminate the defendant\u27s right to federal habeas review of the claim? If so, were there nonetheless certain federal rights that only the defendant could waive before federal habeas review would be barred? If counsel\u27s decision could bind the client, what sort of decision did counsel have to make? Could the attorney\u27s decision not to object to a constitutional infringement bind the client even if the attorney had failed to research the relevant law, or investigate the facts, or appreciate the relationship of the law to the facts? Could the defense counsel bind the defendant if the counsel did not even know an objection was possible? Could the defendant challenge the competency of the counsel\u27s decision, even if that decision barred all review of the merits of the issue counsel did not raise? Which side--the defense or the government--had the burdens of production and persuasion on deliberate bypass

The Effect of the United Nations Convention Against Torture on the Scope of Habeas Review in the Context of International Extradition

This Note considers the law underlying the question addressed in Trinidad: can habeas courts review an extraditee’s Article Three claims? In turn, this Note considers how courts should interpret the CAT in the extradition context. Part I explores the important conceptual components of the question posed in Trinidad,including US extradition practice, habeas petitions in extradition proceedings, and the CAT’s implementation in the United States. Building on this, Part II examines competing interpretations of Article Three claims in US courts, highlighting how these claims touch on much deeper issues that remain unsettled by several hundred years of habeas corpus jurisprudence. Finally, Part III posits a simple answer to the straightforward question posed in Trinidad. Neither the CAT, its implementing laws or regulations, nor the United States Constitution allows courts to hear an extraditee’s Article Three claims. Therefore, unless Congress changes the current state of the law, Article Three claims are the exclusive purview of the Secretary