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Aedpa Repeal, Brandon L. Garrett, Kaitlin Phillips
Aedpa Repeal, Brandon L. Garrett, Kaitlin Phillips
Faculty Scholarship
The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) dramatically altered the scope of federal habeas corpus. Enacted in response to a domestic terrorism attack, followed by a capital prosecution, and after decades of proposals seeking to limit post conviction review of death sentences, and Supreme Court rulings severely limiting federal habeas remedies, AEDPA was ratified with little discussion or deliberation. The law and politics of death penalty litigation, which had been particularly active since the U.S. Supreme Court invalidated all death penalty schemes in its 1972 ruling in Furman v. Georgia, culminated in restrictions for all federal habeas …
The New Habeas Corpus In Death Penalty Cases, Larry Yackle
The New Habeas Corpus In Death Penalty Cases, Larry Yackle
Faculty Scholarship
This article offers the first systematic examination of Chapter 154, United States Code, which establishes new statutory arrangements for cases in which state prisoners under sentence of death file federal habeas corpus petitions challenging their convictions or sentences. Chapter 154 was enacted as part of the Antiterrorism and Effective Death Penalty Act of 1996. Yet its provisions were made applicable only in capital cases arising from states that established qualifying schemes for providing indigent death row prisoners with counsel in state postconviction proceedings. No state’s system for supplying lawyers in state court won approval and, in consequence, Chapter 154’s rules …
A Constitutional Theory Of Habeas Power, Lee B. Kovarsky
A Constitutional Theory Of Habeas Power, Lee B. Kovarsky
Faculty Scholarship
Modern habeas corpus law generally favors an idiom of individual rights, but the Great Writ’s central feature is judicial power. Throughout the seventeenth-century English Civil Wars, the Glorious Revolution, and the war in the American colonies, the habeas writ was a means by which judges consolidated authority over the question of what counted as 'lawful' custody. Of course, the American Framers did not simply copy the English writ—they embedded it in a Constitutional system of separated powers and dual sovereignty. 'A Constitutional Theory of Habeas Power' is an inquiry into the newly minted principle that the federal Constitution guarantees some …
Judicial Review For Enemy Fighters: The Court’S Fateful Turn In Ex Parte Quirin, The Nazi Saboteur Case, Andrew Kent
Judicial Review For Enemy Fighters: The Court’S Fateful Turn In Ex Parte Quirin, The Nazi Saboteur Case, Andrew Kent
Faculty Scholarship
The emerging conventional wisdom in the legal academy is that individual rights under the U.S. Constitution should be extended to noncitizens outside the United States. This claim - called globalism in my article - has been advanced with increasing vigor in recent years, most notably in response to legal positions taken by the Bush administration during the war on terror. Against a Global Constitution challenges the textual and historical grounds advanced to support the globalist conventional wisdom and demonstrates that they have remarkably little support. At the same time, the article adduces textual and historical evidence that noncitizens were among …
Understanding The Exceptional And Dynamic Nature Of Boumediene Rights To Court Access, Andrew Kent
Understanding The Exceptional And Dynamic Nature Of Boumediene Rights To Court Access, Andrew Kent
Faculty Scholarship
This short piece replies to Professor Steve Vladeck's comments on my essay 'Do Boumediene Rights Expire?' 161 U. Pa. L. Rev. Pennumbra 20 (2012), available at http://ssrn.com/abstract=2166103. In this reply, I further develop the argument that Boumediene rights to court access may have expired for those Guantanamo detainees determined through habeas litigation to be enemy fighters; and whether these judicially-confirmed enemy fighters have continuing rights court access under Boumediene goes to the federal courts' subject matter jurisdiction, meaning that the Obama administration's concession of continued court access is inoperative and federal courts must sua sponte raise and decide the issue.
Original Habeas Redux, Lee B. Kovarsky
Original Habeas Redux, Lee B. Kovarsky
Faculty Scholarship
This article explores what is perhaps the Supreme Court’s most exotic appellate power— its authority to issue (inaptly-named) “original” writs of habeas corpus. Although I have been working on Original Habeas Redux for some time, the Troy Davis case has recently thrust this topic into the national spotlight. In Davis (2009), the Supreme Court exercised, for the first time in over forty years, its power to transfer an original habeas petition to a district court for merits adjudication. Having collected and tabulated two decades of new data, I argue that Davis is not a blip in an otherwise constant state …
Habeas Verité, Lee B. Kovarsky
Habeas Verité, Lee B. Kovarsky
Faculty Scholarship
Three recent books from varied academic disciplines demonstrate that habeas is as much about power as it is about liberty - the power of some judges over other magistrates, the power of the judiciary over coordinagte governing institutions, and the power of dominant political coalitions ovefr the opposition.
Untangling The Twists Of Habeas Corpus, Larry Yackle
Untangling The Twists Of Habeas Corpus, Larry Yackle
Faculty Scholarship
Take it from me. The one job you don't want is sorting out federal habeas corpus. By all accounts, existing arrangements are an unrelieved disaster. Yet now come Nancy King and Joseph Hoffmann with a valiant effort to set things in order. Their book describes habeas corpus as the writ currently stands, offers explanations of why and how we have come to this pass, and, most important, advances a definite plan of action for habeas in criminal cases-a way to fix what so desperately needs fixing. This is a good book, a valuable book. It is informative, essentially accurate in …
Death Ineligibility And Habeas Corpus, Lee B. Kovarsky
Death Ineligibility And Habeas Corpus, Lee B. Kovarsky
Faculty Scholarship
I examine the interaction between what I call 'death ineligibility' challenges and the habeas writ. A death ineligibility claim alleges that a criminally-confined capital prisoner belongs to a category of offenders for which the Eighth Amendment forbids execution. By contrast, a 'crime innocence' claim alleges that, colloquially speaking, a capital prisoner 'wasn’t there, and didn’t do it.' In the last eight years, the Supreme Court has identified several new ineligibility categories, including mentally retarded offenders. Configured primarily to address crime innocence and procedural challenges, however, modern habeas law is poorly equipped to accommodate ineligibility claims. Death Ineligibility traces the genesis …
Guantánamo, Habeas Corpus, And Standards Of Proof: Viewing The Law Through Multiple Lenses, Matthew C. Waxman
Guantánamo, Habeas Corpus, And Standards Of Proof: Viewing The Law Through Multiple Lenses, Matthew C. Waxman
Faculty Scholarship
The Supreme Court held in Boumediene v. Bush that Guantánamo detainees have a constitutional right to habeas corpus review of their detention, but it left to district courts in the first instance responsibility for working through the appropriate standard of proof and related evidentiary principles imposed on the government to justify continued detention. This article argues that embedded in seemingly straightforward judicial standard-setting with respect to proof and evidence are significant policy questions about competing risks and their distribution. How one approaches these questions depends on the lens through which one views the problem: through that of a courtroom concerned …
Initiating A New Constitutional Dialogue: The Increased Importance Under Aedpa Of Seeking Certiorari From Judgments Of State Courts, Giovanna Shay, Christopher Lasch
Initiating A New Constitutional Dialogue: The Increased Importance Under Aedpa Of Seeking Certiorari From Judgments Of State Courts, Giovanna Shay, Christopher Lasch
Faculty Scholarship
The Antiterrorism and Effective Death Penalty Act (AEDPA) contains a provision restricting federal courts from considering any authority other than holdings of the Supreme Court in determining whether to grant a state prisoner’s petition for habeas corpus. Through an empirical study of cert filings and cases decided by the Supreme Court, the Authors assess this provision’s impact on the development of federal constitutional criminal doctrine. Before AEDPA and other restrictions on federal habeas corpus, lower federal courts and state courts contributed to doctrinal development by engaging in a dialogue. This dialogue served to articulate the broad constitutional principles set forth …
The Unitary Executive, Jurisdiction Stripping, And The Hamdan Opinions: A Textualist Response To Justice Scalia, Steven G. Calabresi, Gary S. Lawson
The Unitary Executive, Jurisdiction Stripping, And The Hamdan Opinions: A Textualist Response To Justice Scalia, Steven G. Calabresi, Gary S. Lawson
Faculty Scholarship
In Hamdan v. Rumsfeld, a five to three majority of the United States Supreme Court held unlawful the Bush Administration's use of military commissions to try alien combatant detainees held at the United States airbase in Guantanamo Bay, Cuba-at least until and unless Congress enacted more specific authorization for the composition and procedures of the commissions. 1 There are many features of the Court's opinion that we find questionable: its analysis of the wartime scope of the "executive Power"2 vested in the President by Article II of the Constitution,3 its construction of the statutes that supposedly limit the President's power …
Aedpa's Wrecks: Comity, Finality, And Federalism, Lee B. Kovarsky
Aedpa's Wrecks: Comity, Finality, And Federalism, Lee B. Kovarsky
Faculty Scholarship
Over the last decade, federal courts have internalized the idea that interpretations of the Antiterrorism and Effective Death Penalty Act (AEDPA) should disfavor habeas relief. This Article explores the strange legislative history surrounding AEDPA's passage and the resulting problems in using 'comity, finality, and federalism' to express this interpretive mood. It demonstrates that such a simplistic reading of habeas reform is deeply misguided. Through the use of public choice and related models, the Article explores the roots of this interpretive problem. It ultimately rejects any attempt to characterize AEDPA by reference to legislative purpose.
The Military Commissions Act, Habeas Corpus, And The Geneva Conventions, Curtis A. Bradley
The Military Commissions Act, Habeas Corpus, And The Geneva Conventions, Curtis A. Bradley
Faculty Scholarship
No abstract provided.
Federal Habeas Corpus In A Nutshell, Larry Yackle
Federal Habeas Corpus In A Nutshell, Larry Yackle
Faculty Scholarship
Newcomers to the capital punishment controversy may be puzzled by ubiquitous references to the common law writ of habeas corpus. What, you may ask, does the Great Writ have to do with the death penalty? The answer is: virtually everything. The lower federal courts have no ordinary appellate jurisdiction to review state criminal judgments for error. They adjudicate federal constitutional claims in death penalty cases primarily by entertaining habeas corpus petitions from death row prisoners. But for federal habeas corpus, capital sentences imposed for state criminal offenses would be examined only in state court and, occasionally, in the Supreme Court …
The Aba's Proposed Moratorium On The Death Penalty: The American Bar Association And Federal Habeas Corpus, Larry Yackle
The Aba's Proposed Moratorium On The Death Penalty: The American Bar Association And Federal Habeas Corpus, Larry Yackle
Faculty Scholarship
The ABA explains its proposed moratorium on capital punishment in part on the ground that recent decisions rendered by the Supreme Court and legislation enacted by Congress limit the ability of prisoners under sentence of death to challenge their sentences in the federal courts.' According to the ABA, the Supreme Court has placed numerous hurdles in the path of prisoners who apply to the federal courts for a writ of habeas corpus, claiming that their convictions were obtained or their sentences were imposed in violation of federal law. Congress, for its part, has added even more barriers in Title I …
The Habeas Hagioscope, Larry Yackle
The Habeas Hagioscope, Larry Yackle
Faculty Scholarship
If you would understand American law, American politics, and the elusive difference between the two, look no further. Federal habeas corpus for state prisoners opens a window on the workings of our national government, overt and covert. I mean in this Article to describe the scene that is revealed. A rich account of experience in recent years can contribute to a deeper understanding of our government by arranging the players and the set in context and sequence. The record will show a number of things to be true.
"Death Is Different" And Other Twists Of Fate, Deborah W. Denno
"Death Is Different" And Other Twists Of Fate, Deborah W. Denno
Faculty Scholarship
Professor Welsh White's book, The Death Penalty in the Nineties, reviews those United States Supreme Court decisions and developments that have occurred in the four years since the publication of his earlier book, The Death Penalty in the Eighties. In The Nineties, White claims that these recent developments, which have significantly limited capital defendants' habeas corpus appeals, are likely to increase both the rate and the geographical reach of executions which, in the past, have occurred mostly in the South. After discussing some of the analytical and methodological shortcomings of The Nineties, this review will focus on The Nineties' most …
The Great Writ In Action: Empirical Light On The Federal Habeas Corpus Debate, Larry Yackle
The Great Writ In Action: Empirical Light On The Federal Habeas Corpus Debate, Larry Yackle
Faculty Scholarship
The national debate regarding federal habeas corpus for state prisoners is fueled in the main by ideology. To some, the authority of the federal courts to entertain constitutional challenges to state criminal convictions is the embodiment of all that was right about the Warren Court and the vision that Court offered of a meaningful system of American liberty, underwritten by independent federal tribunals willing and able to check the coercive power of government. By this account, the Bill of Rights is the protean source of safeguards for individual freedom - commanding generous, imaginative, and insightful elaboration by federal courts at …
Habeas Corpus And The Penalty Of Death, Michael E. Tigar
Habeas Corpus And The Penalty Of Death, Michael E. Tigar
Faculty Scholarship
No abstract provided.
Form And Function In The Administration Of Justice: The Bill Of Rights And Federal Habeas Corpus, Larry Yackle
Form And Function In The Administration Of Justice: The Bill Of Rights And Federal Habeas Corpus, Larry Yackle
Faculty Scholarship
Part I critiques the Report's insistence that accurate fact finding exhausts, or nearly exhausts, the objectives of criminal justice, identifies the fundamental role of the Bill of Rights in the American political order, and situates federal habeas corpus within that framework. Part II traces the Report's historical review of the federal habeas jurisdiction and critiques the Report's too-convenient reliance on selected materials that, on examination, fail to undermine conventional understandings of the writ's development as a postconviction remedy. Part III responds to the Report's complaints regarding current habeas corpus practice and refutes contentions that the habeas jurisdiction overburdens federal dockets …
The Misadventures Of State Postconviction Remedies, Larry Yackle
The Misadventures Of State Postconviction Remedies, Larry Yackle
Faculty Scholarship
In a colloquium concentrating on the lower federal courts' jurisdiction to determine federal claims, it falls to me to treat state court opportunities to adjudicate the same issues in advance of, as an aid to, or in place of federal litigation. To do that, I will have to recount some conventional wisdom regarding the development of federal habeas corpus and state postconviction remedies in tandem during the last half century. In due course, I hope to solicit support for an unconventional conclusion to be drawn from that experience.
Thinking About Habeas Corpus, Erwin Chemerinsky
Thinking About Habeas Corpus, Erwin Chemerinsky
Faculty Scholarship
Hailed as the "great writ of liberty," the writ of habeas corpus protects the American citizenry from arbitrary and wrongful governmental imprisonment. The scope of the protection provided by the writ, however, has never been finally settled during it's almost 200 year existence. This is the result of failure on the part of those analyzing its scope to recognize the complexity of the issues involved and to confront the true issues that underlie its application. In this Article, Professor Chemerinsky discusses what he considers to be the four primary considerations of habeas issues; federalism, separation of powers, the purposes of …
Explaining Habeas Corpus, Larry Yackle
Explaining Habeas Corpus, Larry Yackle
Faculty Scholarship
The conventional rationale underlying postconviction habeas corpus in the Federal forum is that the individual's interest in freedom from unlawful detention warrants a second look at Federal claims already rejected by the State courts. The subject-matter jurisdiction of the habeas courts is explicitly limited to petitions from applicants who allege they are in 'custody' in violation of Federal Law. The courts, however, circumvent the 'custody' requirement if it threatens to obstruct effective Federal postconviction review to protect persons from recalcitrant State authorities. The proposed alternative explanation of habeas corpus is that it makes available a Federal forum in which to …
The Reagan Administration's Habeas Corpus Proposals, Larry Yackle
The Reagan Administration's Habeas Corpus Proposals, Larry Yackle
Faculty Scholarship
"Democracy," said Churchill, "means that if the door bell rings in the early hours, it is likely to be the milkman." He might have added that if the caller is not the milkman, but a police officer, Anglo-American democracy contemplates that the writ of habeas corpus will be available to the citizen awakened and dragged off into the darkness. The Great Writ has no substantive content of its own but provides the machinery for putting claims before state and federal courts-for translating substantive principles of liberty into effective law. The writ is process, but more than process. It is the …
Book Review, Ira Michael Heyman, Michael E. Tigar
Book Review, Ira Michael Heyman, Michael E. Tigar
Faculty Scholarship
No abstract provided.