Habeas Corpus

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Contents

Overview

A habeas corpus petition is a request that a court order a person be made available to it and, generally speaking, released from custody. While in theory, a habeas corpus petition can be used to apply to any person held by any person, public or private, 99%+ of habeas corpus petitions seek the release of someone in a prison or jail as a result of a criminal conviction, alleging that the detention is wrongful. In federal court, about 1% of habeas corpus petitions involve the death penalty, about 20% involve life sentences, and the remainder mostly involve long prison terms. State remedies, typically first direct appeals up to the state supreme court and then a state habeas corpus petition appealled up to the state supreme court, generally take roughly five years to exhaust, so the vast majority of prisoners are released before they are eligible for federal habeas corpus relief.

The right of the courts to release prisoners in a habeas corpus case is a fundamental right found in Article I, Section 9 of the Constitution of the United States of America and has roots back to ancient English law.

In cases, such as the detention of prisoners at Guantanamo Bay as a result of the Bush Administration enemy combatant policies (which are highly unusual because they do not involve criminal convictions), it is the only means of relief available to prisoners and the availability of habeas corpus relief is contested. The outcome of some of these cases was addressed in The Enemy Combatant Cases.

Habeas corpus law currently sets very strict standards for granting the release of a convicted prisoner. In recent times, the Antiterrorism and Effective Death Penalty Act of 1996 (which, despite its name, applies to all habeas corpus petitions) and the Prison Litigation Reform Act of 1996 (which applies to prisoner petitions other than habeas corpus petitions), have largely rendered ineffective efforts by prisoners to seek relief of any kind in the federal courts. The prisoner must have exhausted all other avenues of appeal. The average habeas corpus petition is filed five years after a state court conviction. The prisoner must show, either new evidence of actual innocence, or a clear violation of a constitutional or legal right by the courts which was not remedied on direct appeal. Even if in the reviewing court's opinion the prior courts got the law wrong, the reviewing court cannot overrule unless the prior courts were objectively unreasonable in their interpretation of the law. There is considerable doubt about the extent to which even "innocence" is a ground for releasing a person from prison and there are strict rules regarding which grounds for granting a petition for habeas corpus must be considered first. (See the cartoon at page 98 of this source to see how this feels from a prisoner's point of view).

There is no right to an attorney in a habeas corpus petition, a somewhat ironic rule of law because deprivation of the constitutional right to "effective assistance of counsel" (i.e. the claim that a person is in jail primarily because his lawyer screwed up) is one of the most common claims in habeas petitions. The vast majority of habeas corpus petitions in federal court are filed by prisoners without a lawyer (88% of appeals of prisoner petitons are "pro se" and at the trial level 93% of prisoner petitions are "pro se", courts appoint counsel in 4% of cases despite the fact that this is not legally required by the constitution, and non-court appointed counsel is present in 3% of cases at the trial level).

In federal court at the trial level, about 63% fail on proceedural grounds or because no legal reason for release is stated (57% of the total, i.e. 90% of petitions dismissed, are dismissed because not all state remedies have been exhausted), about 35% are denied on the merits, and about 2% are either granted or remanded to a state court for further consideration. At the trial level a typical federal habeas corpus petition which is dismissed is ruled on in 9 months, while a typical habeus corpus petition considered on the merits is ruled on in 16 months. A large percentage of habeas corpus petitons (probably in excess of 40%) are appealled. At the Court of Appeals level about two-thirds of prisoner petitions are denied on procedural grounds and about 15% of those cases considered on the merits produce some relief (i.e. relief is provided at the appellate level in somewhat less than 2% of all cases originally filed in the trial court). While no figures are available, it is safe to guess that at the very least, almost all of the procedural dismissals involved unrepresented prisoners, implying a much higher dismissal rate for "pro se" parties than for parties represented by attorneys.

New Developments

The 9th Circuit Court of Appeals is considering whether a key detail of ADEPA, which limits the Courts to U.S. Supreme Court precedents only when determining the validity of a state court decision, is constitutional. Analysis is found here.

References

  • Jennifer K. Elsea & Kenneth Thomas. "Guantanamo Detainees: Heabeas Corpus Challenges in Federal Courts." Congressional Research Service: CRS Report for Congress. December 7. 2005.
  • Liebman has prepared a balanced and comprehensive treatise on federal habeas corpus law and procedure, Federal Habeas Corpus Practice and Procedure. It is regarded as the authoritative work in this field.

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