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Constitutional Law

Habeas corpus

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Reforming Recidivism: Making Prison Practical Through Help, Katelyn Copperud Jun 2019

Reforming Recidivism: Making Prison Practical Through Help, Katelyn Copperud

The Scholar: St. Mary's Law Review on Race and Social Justice

While Texas has long been recognized as “Tough Texas” when it comes to crime, recent efforts have been made to combat that reputation. Efforts such as offering “good time” credit and more liberal parole standards are used to reduce the Texas prison populations. Although effective in reducing prison populations, do these incentives truly reduce a larger issue of prison overpopulation: recidivism?

In both state and federal prison systems, inmate education is proven to reduce recidivism. Texas’s own, Windham School District, provides a broad spectrum of education to Texas Department of Criminal Justice inmates; from General Education Development (GED) classes ...


What Is "New"?: Defining "New Judgement" After Magwood, Patrick Cothern Jun 2019

What Is "New"?: Defining "New Judgement" After Magwood, Patrick Cothern

Michigan Law Review

Habeas corpus petitioners must navigate the procedural barriers of the Anti-terrorism and Effective Death Penalty Act (“AEDPA”) before courts consider their petitions on the merits. Among the barriers imposed is a general prohibition on “second or successive” habeas petitions, meaning a petitioner who previously filed a habeas petition may not bring another, with limited exceptions. One such exception, recognized by the Supreme Court in Magwood v. Patterson, allows for a second habeas petition after the petitioner obtains a “new judgment.” Magwood and AEDPA, however, left the term “new judgment” undefined. This Note summarizes the history of habeas corpus in the ...


Equitable Gateways: Toward Expanded Federal Habeas Corpus Review Of State Court Criminal Convictions, Eve Brensike Primus Apr 2019

Equitable Gateways: Toward Expanded Federal Habeas Corpus Review Of State Court Criminal Convictions, Eve Brensike Primus

Articles

State prisoners who file federal habeas corpus petitions face a maze of procedural and substantive restrictions that effectively prevent almost all prisoners from obtaining meaningful review of their convictions. But it is a mistake to think that habeas litigation is just a Kafkaesque nightmare with no constructive potential. Federal courts do sometimes cut through the doctrinal morass to consider state prisoners’ claims, relying on what this Articleterms "equitable gateways" to federal habeas relief. Litigants and courts generally underestimate the potential these gateways offer, with the result that habeas litigation does not focus on them as often as it should. Here ...


Looking Backward And Forward At The Suspension Clause, G. Edward White Apr 2019

Looking Backward And Forward At The Suspension Clause, G. Edward White

Michigan Law Review

Review of Amanda L. Tyler's Habeas Corpus in Wartime: From the Tower of London to Guantanamo Bay.


Originalism And A Forgotten Conflict Over Martial Law, Bernadette Meyler Apr 2019

Originalism And A Forgotten Conflict Over Martial Law, Bernadette Meyler

Northwestern University Law Review

This Symposium Essay asks what a largely forgotten conflict over habeas corpus and martial law in mid-eighteenth-century New York can tell us about originalist methods of constitutional interpretation. The episode, which involved Abraham Yates, Jr.—later a prominent Antifederalist—as well as Lord Loudoun, the commander of the British forces in America, and New York Acting Governor James De Lancey, furnishes insights into debates about martial law prior to the Founding and indicates that they may have bearing on originalist interpretations of the Suspension Clause. It also demonstrates how the British imperial context in which the American colonies were situated ...


Litigating Federal Habeas Corpus Cases: One Equitable Gateway At A Time, Eve Brensike Primus Jul 2018

Litigating Federal Habeas Corpus Cases: One Equitable Gateway At A Time, Eve Brensike Primus

Other Publications

Habeas corpus, also known as the Great Writ, was meant to be a “bulwark against convictions that violate fundamental fairness,” according to the Supreme Court. Yet today, federal courts provide relief in fewer than half of one percent of cases in which a non-capital state prisoner seeks relief through habeas. The Great Writ, it would seem, is no longer so great. In Litigating Federal Habeas Corpus Cases: One Equitable Gateway at a Time, Eve Brensike Primus examines the various procedural and substantive hurdles that have been erected in the past half century that make it nearly impossible for state prisoners ...


The Unsuspected Francis Lieber, Richard Salomon May 2018

The Unsuspected Francis Lieber, Richard Salomon

All Dissertations, Theses, and Capstone Projects

"The Unsuspected Francis Lieber" examines paradoxes in the life and work of Francis Lieber. Lieber is best known as the author of the 1863 "Lieber Code," the War Department's General Order No. 100. It was the first modern statement of the law of armed conflict. This paper questions whether the Lieber Code was truly humanitarian, especially in view of its valorization of military necessity. Also reviewed is the contrast between the Code's extraordinarily favorable treatment of African-Americans and Lieber's personal history of slave-holding.

Lieber's shift from civil libertarian to authoritarian after 1857, as exemplified by his ...


Due Process Of War, Nathan Chapman Jan 2018

Due Process Of War, Nathan Chapman

Scholarly Works

The application of the Due Process Clause of the Fifth Amendment to the government’s deprivation of rights during war is one of the most challenging and contested questions of constitutional law. The Supreme Court has not provided a consistent or historically informed framework for analyzing due process during war. Based on the English background, the text and history of the U.S. Constitution, and early American practice, this Article argues that due process was originally understood to apply to many but not to all deprivations of rights during war. It proposes a framework for analyzing due process during war ...


Making Habeas Work: A Legal History, Eric M. Freedman Jan 2018

Making Habeas Work: A Legal History, Eric M. Freedman

Hofstra Law Faculty Scholarship

A reconsideration of the writ of habeas corpus casts new light on a range of current issues

Habeas corpus, the storied Great Writ of Liberty, is a judicial order that requires government officials to produce a prisoner in court, persuade an independent judge of the correctness of their claimed factual and legal justifications for the individual’s imprisonment, or else release the captive. Frequently the officials resist being called to account. Much of the history of the rule of law, including the history being made today, has emerged from the resulting clashes.

This book, heavily based on primary sources from ...


Is ‘Military Necessity’ Enough? Lincoln’S Conception Of Executive Power In Suspending Habeas Corpus In 1861, Evan Mclaughlin Dec 2017

Is ‘Military Necessity’ Enough? Lincoln’S Conception Of Executive Power In Suspending Habeas Corpus In 1861, Evan Mclaughlin

Seton Hall University Dissertations and Theses (ETDs)

In May 1861, President Abraham Lincoln's decision to suspend habeas corpus in Baltimore following an attack on Federal troops as they marched through Baltimore on April 19th to answer Lincoln’s call to defend the Capitol. To complicate matters further, Congress was still in recess, so they could not legislate a solution to the growing insurgency. In order to check these actions, Abraham Lincoln authorized General Scott to suspend Habeas Corpus between Baltimore and Philadelphia. When John Merryman was arrested, detained, and denied habeas corpus, Chief Justice Roger B. Taney issued an in-chambers decision, Ex Parte Merryman, to voice ...


Making Habeas Work: A Legal History, Eric M. Freedman Oct 2017

Making Habeas Work: A Legal History, Eric M. Freedman

Other Lectures and Presentations

The attached materials represent an early draft of the first three chapters of Professor Freedman's publication from NYU Press, Making Habeas Work: A Legal History. This is the material on which this faculty workshop is based.


Reflections On Forty Years Of Private Practice And Sustained Pro Bono Advocacy, Stephen H. Oleskey Oct 2017

Reflections On Forty Years Of Private Practice And Sustained Pro Bono Advocacy, Stephen H. Oleskey

Maine Law Review

I am going to address two topics. The first is the one Judge Coffin asked me to address in October 2009, when I was invited to give the 2010 Coffin Lecture: how to combine the private practice of law with an active pro bono practice. The second topic is the one Dean Peter Pitegoff and I agreed to add: a brief discussion of legal developments in national security law since 9/11. My pro bono involvement in Guantanamo Habeas litigation began in 2004 and led directly to my interest in national security law and to my recognition of how difficult ...


Federal Habeas Review Of State Court Convictions: Incoherent Law But An Essential Right, Lynn Adelman Jul 2017

Federal Habeas Review Of State Court Convictions: Incoherent Law But An Essential Right, Lynn Adelman

Maine Law Review

I thank the editors of the Maine Law Review for the opportunity to participate in a discussion about the present state of post-conviction review of criminal convictions. This discussion is important and timely both because the quality of the procedures by which state prisoners can obtain post-conviction review varies greatly from state to state and because state prisoners who seek federal court review of their constitutional claims by petitioning for a writ of habeas corpus face many obstacles. As a federal district judge, my experience is primarily with the later problem. Thus, in this article, I will offer a few ...


The Constitution And National Security, Erwin Chemerinsky Jun 2017

The Constitution And National Security, Erwin Chemerinsky

Erwin Chemerinsky

No abstract provided.


Presidential Powers Including Military Tribunals In The October 2005 Term, Erwin Chemerinsky Jun 2017

Presidential Powers Including Military Tribunals In The October 2005 Term, Erwin Chemerinsky

Erwin Chemerinsky

No abstract provided.


Habeas As Forum Allocation: A New Synthesis, Carlos M. Vázquez Apr 2017

Habeas As Forum Allocation: A New Synthesis, Carlos M. Vázquez

University of Miami Law Review

The scope of habeas relief for state prisoners, especially during the decades before the Supreme Court’s 1953 decision in Brown v. Allen, is a famously disputed question—one of recognized significance for contemporary debates about the proper scope of habeas review. This Article provides a new answer. It argues that, until the enactment of Anti-Terrorism and Effective Death Penalty Act of 1996 (“AEDPA”), it was broadly accepted that state prisoners were entitled to plenary federal review of the legal and mixed law/fact questions decided against them by state courts. Until 1916, such review was provided by the Supreme ...


Newsroom: Closing Guantanamo Isn't Enough 03-14-2016, Jared Goldstein Mar 2016

Newsroom: Closing Guantanamo Isn't Enough 03-14-2016, Jared Goldstein

Life of the Law School (1993- )

No abstract provided.


When Society Becomes The Criminal: An Exploration Of Society’S Responsibilities To The Wrongfully Convicted, Amelia A. Haselkorn Jan 2016

When Society Becomes The Criminal: An Exploration Of Society’S Responsibilities To The Wrongfully Convicted, Amelia A. Haselkorn

Pitzer Senior Theses

This thesis explores how society can and should compensate those who have been wrongfully convicted after they are exonerated and how we can prevent these mistakes from happening to others in the future. It begins by presenting research on the scope of the problem. Then it suggests possible reforms to the U.S. justice system that would minimize the rate of innocent convictions. Lastly, it takes both a philosophical and political look at what just compensation would entail as well as a variety of state compensation laws.


Berry V. State, 131 Nev. Adv. Op. No. 96 (Dec. 24, 2015), Brittany L. Shipp Dec 2015

Berry V. State, 131 Nev. Adv. Op. No. 96 (Dec. 24, 2015), Brittany L. Shipp

Nevada Supreme Court Summaries

The issue before the Court was an appeal from a district court order dismissing a post-conviction petition for writ of habeas corpus. The Court reversed and remanded holding that the district court improperly discounted the declarations in support of the appellant’s petition, which included a confession of another suspect, whom the petitioner implicated as the real perpetrator at trial. The Court held that these declarations were sufficient to merit discovery, and an evidentiary hearing on Petitioner Berry’s gateway actual innocence claim.


Section 1983 Cases In The October 2004 Term, Martin A. Schwartz Oct 2015

Section 1983 Cases In The October 2004 Term, Martin A. Schwartz

Martin A. Schwartz

No abstract provided.


Pinholster's Hostility To Victims Of Ineffective State Habeas Counsel, Jennifer Utrecht Oct 2015

Pinholster's Hostility To Victims Of Ineffective State Habeas Counsel, Jennifer Utrecht

Michigan Law Review

Cullen v. Pinholster foreclosed federal courts from considering new evidence when reviewing 28 U.S.C. § 2254(d) petitions for claims previously adjudicated on the merits in state court. This decision has a particularly adverse effect on petitioners whose state habeas counsel left an incomplete or undeveloped record. This Note discusses strategies for victims of ineffective state habeas counsel to avoid the hostile mandate of Pinholster. It argues that, in light of Martinez v. Ryan’s recognition of the importance of counsel in initialreview collateral proceedings, courts should be wary of dismissing claims left un- or underdeveloped by ineffective state ...


The Effect Of Jackson V. Virginia On Federal Habeas Corpus Review Of State Convictions, David R. Parker Jul 2015

The Effect Of Jackson V. Virginia On Federal Habeas Corpus Review Of State Convictions, David R. Parker

Akron Law Review

This comment will attempt to demonstrate that the faults complained of by the dissent are not substantial. On the contrary, the decision gives much-needed interpretation to an important aspect of federal habeas corpus jurisdiction. However, the practical consequences of the employment of the Jackson standard are problematic.


Detention Of Australia’S Asylum Seekers In Nauru: Is Deprivation Of Liberty By Any Other Name Just As Unlawful?, Azadeh Dastyari May 2015

Detention Of Australia’S Asylum Seekers In Nauru: Is Deprivation Of Liberty By Any Other Name Just As Unlawful?, Azadeh Dastyari

Azadeh Dastyari

This article will examine the detention of Australia’s asylum seekers in Nauru. In particular, this article will assess the conformity of the 2013 MOU between Australia and Nauru with the protections against unlawful deprivation of liberty under the Constitution of Nauru and the protections against arbitrary detention afforded to asylum seekers under international law.

The article will begin by discussing the transfer of asylum seekers by Australia to Nauru and the legality of this arrangement under Australian municipal law. The article will then discuss the arrangements for asylum seekers once they are in Nauru. It will demonstrate that the ...


The Demise Of Habeas Corpus And The Rise Of Qualified Immunity: The Court's Ever Increasing Limitations On The Development And Enforcement Of Constitutional Rights And Some Particularly Unfortunate Consequences, Stephen R. Reinhardt May 2015

The Demise Of Habeas Corpus And The Rise Of Qualified Immunity: The Court's Ever Increasing Limitations On The Development And Enforcement Of Constitutional Rights And Some Particularly Unfortunate Consequences, Stephen R. Reinhardt

Michigan Law Review

The collapse of habeas corpus as a remedy for even the most glaring of constitutional violations ranks among the greater wrongs of our legal era. Once hailed as the Great Writ, and still feted with all the standard rhetorical flourishes, habeas corpus has been transformed over the past two decades from a vital guarantor of liberty into an instrument for ratifying the power of state courts to disregard the protections of the Constitution. Along with so many other judicial tools meant to safeguard the powerless, enforce constitutional rights, and hold the government accountable, habeas has been slowly eroded by a ...


People V. Cole: Is The Incarceration Of An "Actually Innocent" Person Constitutional?, Aileen R. Kavanagh Apr 2015

People V. Cole: Is The Incarceration Of An "Actually Innocent" Person Constitutional?, Aileen R. Kavanagh

Touro Law Review

No abstract provided.


Habeas Corpus And Freedom Of Speech, Michael Wells Mar 2015

Habeas Corpus And Freedom Of Speech, Michael Wells

Michael V. Wells

This Article will examine substantive attacks on habeas based on the assertion that the petitioner's confinement violates his first amendment rights of free speech, press or assembly. The thesis is that when these rights are at issue, the considerations supporting broad habeas are stronger, and the costs of habeas are lower, than when the petitioner is asserting the violation of a federal procedural right. As a result, the necessary choice of values is more easily resolved in favor of broad first amendment habeas than it is for broad procedural habeas. Essential to this analysis is the premise that a ...


Jones, Lackey, And Teague, Richard Broughton Feb 2015

Jones, Lackey, And Teague, Richard Broughton

Richard Broughton

In a recent, high-profile ruling, a federal court finally recognized that a substantial delay in executing a death row inmate violated the Eighth Amendment’s ban on cruel and unusual punishments. Courts have repeatedly rejected these so-called “Lackey claims,” making the federal court’s decision in Jones v. Chappell all the more important. And yet it was deeply flawed. This paper focuses on one of the major flaws in the Jones decision that largely escaped attention: the application of the non-retroactivity rule from Teague v. Lane. By comprehensively addressing the merits of the Teague bar as applied to Lackey claims ...


Supreme Court, Monroe County, People Ex Rel. Gordon V. O'Flynn, Hannah Abrams Dec 2014

Supreme Court, Monroe County, People Ex Rel. Gordon V. O'Flynn, Hannah Abrams

Touro Law Review

No abstract provided.


Supreme Court, Bronx County, People Ex Rel. Furde V. New York City Dep't Of Correction, Adam D'Antonio Nov 2014

Supreme Court, Bronx County, People Ex Rel. Furde V. New York City Dep't Of Correction, Adam D'Antonio

Touro Law Review

No abstract provided.


Substantive Habeas, Kimberly A. Thomas Oct 2014

Substantive Habeas, Kimberly A. Thomas

Articles

Substantive Habeas identifies the US. Supreme Court's recent shift in its habeas jurisprudence from procedure to the substance of habeas review and explores the implications of this change. For decades, the US. Supreme Court has attempted to control the flood of habeas corpus petitions by imposing procedural requirements on prisoners seeking to challenge constitutional error in their cases. These restrictive procedural rules have remained at the center of habeas decision making until recently. Over the past few years, instead of further constraining the procedural gateway for habeas cases, the Supreme Court has shifted its focus to the substance of ...