In 1933 Alabama, nine black males, aged 12 to 21, were accused of raping two white female teenagers. Twelve days after their arrest, the boys were brought into an Alabama court and presented with their “lawyers”: one, a forgetful, elderly man of seventy, hadn’t tried a case in decades; the other, an unpaid real-estate lawyer from Tennessee, knew nothing about Alabama criminal law and arrived at the trial so intoxicated he could hardly walk. Predictably, the ensuing trials—there were four in total; the first began only twelve days after the arrests were made—were anything but fair. The defense barely cross-examined the prosecution’s key witnesses and refused to make closing arguments; the juries, made up exclusively of white men, had read the sensationalist newspaper accounts of the alleged rapes for the past twelve days, and were primed to convict before any evidence was presented; and, perhaps most damningly, the boys were not allowed to meet with their lawyers until the first day of the trial. Eight of the nine boys were convicted and sentenced to death (the ninth, Roy Wright, was declared a mistrial after eleven of the jurors held out for death despite the prosecution’s request for life without parole; Wright at the time was twelve years old). The Alabama Supreme Court affirmed all but one of the convictions. Later, the alleged rape victims would recant their allegations. Evidence emerged that police had beaten and tortured at least some of the defendants. The “medical” evidence that the rapes had occurred, it was revealed, was riddled with inconsistencies.
This horrible tale is known as the Scottsboro Boys affair (go here for an excellent summary of the case). But, thankfully, the ordeal didn’t end with the trial. The case was eventually appealed to the United States Supreme Court, resulting in a landmark ruling which guaranteed that any defendant who might possibly receive the death penalty—regardless of the defendant’s finances—deserves the right to have a state-appointed lawyer represent him at trial. The racism and the inherent unfairness of the Scottsboro Boys trial was not unusual in the South at that time. What was unusual was that they were able to successfully appeal their case to the United States Supreme Court.
In almost all cases, criminal defendants are stuck with the verdict of the state court in which they’re tried. This is because our country has a healthy respect for federalism—the idea that states are sovereign entities which shouldn’t interfere in the business of other states, and shouldn’t be interfered with by the federal government. Federal courts are, accordingly, very reluctant to review state court decisions. This isn’t always a bad thing; state courts are, by and large, fair arbiters of justice. But in court—as with all human attempts to determine guilt or innocence—there’s always the chance that the judge (or jury) got it wrong. And in the vast majority of state cases, federal courts are not available to remedy flawed trials. Consider that in 2007, the Supreme Court only reviewed 2.1% of the criminal cases requesting Supreme Court review; in 2008 (an outlier year), the figure was 6.4%; 2009 was 2.8%, and 2010 was 1.8%. In short, unless a state trial proceeding is grotesquely unfair, to the point of violating the defendant’s constitutional rights (more on that later), the state court’s judgment will stand. If, however, the state proceeding was, indeed, grotesquely unfair, then the defendant has one final remedy: habeas corpus.
Strictly defined, the Latin phrase “habeas corpus” means “you have the body.” Legally speaking, a writ of habeas corpus is a request made by a prisoner (one has to be in prison or on parole to file a habeas writ) seeking to invalidate his imprisonment on the grounds that the prisoner is being held in violation of the United States Constitution. In other words, to succeed in a habeas writ, the prisoner must prove that his imprisonment violates United States law.
Former Supreme Court Justice William Brennan called habeas the “Great Writ” because it is historically linked with ensuring the civil liberties of American citizens. Habeas, Justice Brennan felt, is the “bedrock of a civilized society,” for “government must always be accountable to the judiciary for a man’s imprisonment.” Had the Supreme Court not accepted the Scottsboro Boys’ case on direct appeal—which would have been expected given the statistics—the prisoners could have filed a writ of habeas corpus, and the federal courts would have had to account for their imprisonment and conviction by ensuring it complied with the United States Constitution. The Supreme Court, luckily, saved the Scottsboro Boys on appeal. Habeas could have done the same, had the Supreme Court declined to review the case. Habeas, viewed through the eyes of Justice Brennan, has noble and far-reaching implications.
History agrees with Justice Brennan. Habeas emerged as a vibrant legal force in this country in 1867. In the aftermath of the Civil War, and in response to Reconstruction in the South, Congress passed a law, the Habeas Corpus Act of 1867, which allowed state prisoners to file habeas writs in federal courts. (Before 1867, habeas was only available for federal prisoners convicted of federal crimes, and there were very, very few such prisoners). Designed to counteract racist white judges and juries in the South, who were denying black Americans their rights under the newly created 13th, 14th, and 15th Amendments (freedom from slavery, rights of citizenship for black Americans, and voting rights), black prisoners were newly able to assert their constitutional rights and seek relief in the supposedly more impartial federal courts. Habeas law developed steadily from 1867 onwards until it reached its heyday in the Civil Rights Era of the late 1950s, ‘60s and early 1970s.
During the Civil Rights Era, the liberal-minded Chief Justice Earl Warren led the Supreme Court—a court filled with such likeminded progressives as Justice Brennan. In 1867, Congress had passed the Habeas Corpus Act to ensure that black Americans were guaranteed their newly created constitutional rights. Similarly, during this time period the Warren Court created many new substantive Constitutional rights, and then expanded the reach of habeas to ensure all Americans had access to such rights. In other words, the Warren Court not only stripped away many of the complex procedural barriers prisoners faced in filing writs of habeas, but it used habeas to both create many of the civil rights that most Americans now take for granted and then enforce those newly created civil rights through subsequent habeas petitions. Keep in mind that the Warren Court was creating these new rights during the Civil Rights Era, and so habeas became especially important for black prisoners in the Jim Crow South, who were not always granted the fairest of state court trials.
The Warren Court was responsible for creating, among other rights, such civil liberty bedrocks as Miranda Rights—the idea that law enforcement personnel have to inform individuals in custody that they have the right to remain silent and the right to request a lawyer. The Court also created the Brady rule, from the case of Brady v. Maryland, which required prosecutors to turn over evidence which could conceivably prove a defendant’s innocence. Perhaps most famously, the Warren Court also decreed, in Mapp v. Ohio, that any evidence obtained through a policeman’s illegal search and seizure could not be introduced at trial in state courts.
Habeas was integral to the workings of many of the Warren Court’s civil rights cases. The case of Gideon v. Wainwright, for example, involved a criminal defendant from Florida who could not afford a defense lawyer. Because Gideon wasn’t facing the death penalty (he was accused, falsely it turned out, of breaking and entering), Florida refused to provide Gideon with a defense lawyer (Gideon was too poor to afford an attorney himself). After being convicted in the Florida court, without the benefit of a lawyer’s aid, Gideon filed a writ of habeas corpus in federal district court, claiming that Florida’s refusal to provide him with a lawyer violated the U.S. Constitution. The Warren Court, in a stunning move, agreed. They extended the ruling of the Scottsboro Boys case, and ruled that any defendant facing imprisonment had to be provided with a lawyer, at the state’s expense, if he was unable to pay for his own. Thus, a robust right to counsel was born (and public defenders offices across the country were established). In this way, the Warren Court used habeas to further the civil rights of all Americans.
The Warren Court also used habeas petitions to expand the reach of the habeas writ, itself. Up until 1963, if a state prisoner failed to appeal his criminal case all the way up to the state Supreme Court (a process known as exhaustion of appellate remedies), he would be barred from filing a habeas writ in federal court. But in Fay v. Noia, the Warren Court declared that federal courts were free to hear cases that had not been appealed all the way through the state court system. In Henry v. Mississippi, the Supreme Court ruled that if a state prisoner failed to object to the introduction of evidence or a statement at his state court trial, and that evidence or statement violated his constitutional rights (if, for example, he failed to object to a statement that he gave before police gave him his Miranda rights—a statement that would be admissible under the law), then the prisoner could still file a writ of habeas because of that violation, despite not arguing the point in state court (this had previously been disallowed under what’s known as the procedural default doctrine). These are just a few examples of the many ways in which the Warren Court expanded habeas.
Because the Warren Court not only expanded substantive constitutional rights but access to habeas relief as well, there were more habeas cases during this period than ever before. Every time the Court introduced a new right, prisoners who hadn’t received the benefit of the right in their trials filed writs of habeas. Such a sudden and marked increase in habeas cases worried both Congress and more conservative federal judges. A backlash was brewing.
It started in the late 1980s and early ‘90s, when a newly conservative Supreme Court overturned both Fay v. Noia and Henry v. Mississippi, breathing life back into the doctrines of procedural default and the requirement that defendants exhaust state appellate remedies. Then, a 1996 law passed by Congress (AEDPA) introduced a host of restrictions on the availability and efficacy of habeas writs. Among other effects, AEDPA limited prisoners to a single writ of habeas, and gave them a window of only one year after their state conviction became final in which to do so. Prisoners now had just one bite at the apple, and a much shorter time period in which to do it.
Perhaps most powerful was the provision in AEDPA which said that state prisoners would be prohibited from bringing habeas writs which either (a) argued novel interpretations of law or (b) declared “new” constitutional violations (“New” meaning that during the prisoner’s trial, the substantive constitutional right had not yet been declared. Then, later, in somebody else’s trial, federal courts created a new constitutional right—as happened so frequently during the Warren Era—and now the prisoner wants to take advantage of that new constitutional right.) The effect of these provisions was to prevent prisoners from obtaining the benefits of new, Warren Court-style rights through creative legal arguments made in their habeas writs. Interestingly, the defendants in Gideon v. Wainwright could not have brought their habeas writs in today’s world. The defendants were arguing new interpretations of law: that poor defendants facing any period of imprisonment deserved a lawyer.
There are very, very few habeas writs that succeed today. Although many are still filed (the amount of habeas writs continues to increase each year, due in part to the increasing prison population), almost all are rejected by the courts because of provisions in AEDPA or new procedural laws detailed by the Supreme Court. And so habeas—what Justice Brennan so eloquently described as the bedrock of every civilized society—doesn’t really exist anymore. At the very least, it’s been drained of its power.