Confining Custody

• Publication year: 2022

53 Creighton L. Rev. 509. CONFINING CUSTODY

CONFINING CUSTODY

JUSTIN W. AIMONETTI ^[D1]

"[T]he Court seems now to equate custody with almost any restraint, however tenuous. One wonders where the end is." ^[1]

I. INTRODUCTION

When a prisoner petitions for a writ of habeas corpus ("writ") under the federal habeas corpus statute, a federal court must determine whether the individual is being held "in custody in violation of the Constitution or laws or treaties of the United States." ^[2] The United States Supreme Court has indicated that custody is a jurisdictional prerequisite for criminal offenders seeking to challenge the legality of their conviction in federal court. ^[3] Because "custody is the passport to federal habeas corpus jurisdiction," ^[4] federal courts must first determine if the habeas petitioner is in custody. But what does "custody" mean? Congress, at least in the habeas corpus context, has failed to define the term.

With no definition to guide the judiciary, courts traditionally applied the plain meaning of the term in conjunction with both the "common-law" and the "histor[ical]" use of the writ. ^[5] That generated the "strict custody rule," which required actual physical confinement for a petitioner to meet the jurisdictional custody requirement. ^[6] In 1963, however, the Court replaced the bright-line strict custody rule with the restraint on one's liberty standard. ^[7] The standard obliges courts to identify "restraints upon individual liberty that are severe enough to justify the exercise of the extraordinary federal habeas jurisdiction." ^[8] Unsurprisingly, this malleable test has produced unpredictable results. Applying the standard, courts have determined that "parole, probation, bail, personal recognizance, pendent consecutive sentences, suspended sentences, halfway house commitments, community service, []community-based alcohol treatment . . . [and] [i]nactive and unattached reserve status in the military" sufficiently restrain one's liberty to count as "custody" for purposes of habeas jurisdiction. ^[9] On the other hand, courts have decided that "compelled restitution, fines," registration requirements, and "deprivations of various licenses" fail to satisfy the current custody approach. ^[10] This Article will argue that the abandonment of the bright-line strict custody rule unfairly obligated lower courts to engage in the difficult task of determining which punishments sufficiently restrain the liberty of a habeas petitioner. Moreover, this Article will reveal that the departure from the strict custody rule was contrary to both the plain meaning of the governing statute and the traditional common law understanding of the term.

Part I briefly discusses the foundation of the writ of habeas corpus in early America before proceeding to examine the progression of statutory habeas in the United States. ^[11] Part II details the development of the United States Supreme Court's interpretation of custody. ^[12] Part III surveys the difficulties lower courts encounter when deciding which forms of punishment sufficiently restrain a petitioner's liberty. ^[13] This part will also consider, in light of the Supreme Court's recent decision in Padilla v. Kentucky, ^[14] emerging complications resulting from the increasingly obscure line that separates direct from collateral consequences of conviction. ^[15] Part IV turns to the Court's recent decision in Jennings v. Rodriguez ^[16] to argue that a framework is in place to confine custody to its plain and common law meaning. ^[17] Finally, Part V offers concluding remarks. ^[18]

II. STATUTORY HABEAS

The United States Supreme Court departed from the strict custody rule in the 1963 case of Jones v. Cunningham. ^[19] The historical development of the statutes at issue in Jones, however, will show that Congress never intended to abandon the plain meaning, common law understanding of custody. Instead, tracing the statutory development from the Judiciary Act of 1789 ^[20] to the subsequent changes in the Habeas Corpus Act of 1867, ^[21] the 1874 Revised Statutes of the United States, and finally the 1948 codification of the habeas statutes into the United States Code, ^[22] reveals that Congress understood custody to require physical confinement and not merely restraint on one's liberty.

A. JUDICIARY ACT OF 1789

Alexander Hamilton, in Federalist No. 84, emphasized the importance of "the writ of habeas corpus" in that the writ protects against "the practice of arbitrary imprisonment[]" and throughout history has operated as a "formidable instrument[]" against tyranny. ^[23] The First Congress of the United States also felt an "obligation" to give "life and activity" to the safeguards historically afforded by the writ of habeas against arbitrary imprisonment. ^[24] On September 24, 1789, the First Congress adopted "An Act to establish the Judicial Courts of the United States." ^[25] The Act, popularly known as the Judiciary Act of 1789, ^[26] empowered "the justices of the supreme court," as well as the "judges of the district courts," to "grant writs of habeas corpus for the purpose of an inquiry into the cause of commitment." ^[27] Congress, however, expressly limited the judiciary's power to grant the writ. The Act empowered courts to grant habeas relief "to prisoners in gaol," only if the prisoner was "in custody, under or by colour of the authority of the United States." ^[28]

The First Congress, unfortunately, did not define custody. In addition, cases grappling with the satisfaction of the custody requirement rarely appeared in Anglo-American law before 1789. ^[29] Even though bail was a "well-established pre-conviction device," people released on bail, as well other non-incarcerated individuals, never thought of themselves as being in custody, most likely because custody was not thought of in substantive terms. ^[30] That is because, except for in situations of the most exceptional circumstances, ^[31] a petitioner was historically "able to obtain habeas [relief] only if he was subject to tangible physical restraints." ^[32] In the absence of an explicit definition of custody, "resorting" to the "common law" was the judiciary's preferred method to uncover the scope and the "meaning of the term." ^[33]

The common law, informed by Anglo-American history, demonstrates that the writ was understood to be a "remedy available for those . . . unlawfully imprisoned." ^[34] Furthermore, according to William Blackstone's Commentaries on the Laws of England, the writ was to be "directed to the person detaining another, and commanding him to produce the body of the prisoner, with the day and cause of his caption and detention." ^[35] Blackstone's understanding of the writ suggests that, at least to some individuals of that era, imprisonment was a prerequisite for a court to entertain a habeas petition. ^[36] Additionally, eighteenth-century dictionaries buttress the physical confinement plain meaning understanding of custody. Samuel Johnson's influential Dictionary of the English Language equated custody with "imprisonment." ^[37] And the 1828 edition of Noah Webster's dictionary defined the word custody as "to hold." ^[38] The dictionary definitions indicate that custody, according to its ordinary English usage, meant physical confinement.

Any remaining doubt pertaining to the meaning of custody in section 14 of the Act is resolved by turning to the Act's legislative history, which demonstrates that members of the First Congress associated "custody" with imprisonment. Alluding to the writ in the context of creditor-debtor contractual relations, New Jersey Representative Elias Boudinot stated that Congress should worry about a "debtor . . . in custody," who is in "confinement for an actual debt," being "rescue[d]" by "the marshal of the district [who] shall wrest him out of the hands of the sheriff." ^[39] This formulation appears to assume that "custody" means physical restraint, because the marshal could not wrest a habeas petitioner out of a state sheriff's hands unless the petitioner was physically detained. The remarks of Maryland Representative Michael J. Stone provide additional support to the proposition that Congress understood custody to require imprisonment. Speaking directly about the writ, Congressman Stone stated that if someone "required" the prisoner "in gaol" to make an appearance in court, "habeas corpus may be granted." ^[40] In addition, while speaking about the marshal "delivering up his prisoner," Congressman Stone stated that the reasons must be shown for "detaining a man after the cause for which he was committed to [the jailer's] custody ceased." ^[41] The use of the words prisoner, detain, and gaol in connection with the writ of habeas signifies that the congressional drafters of the Act understood custody to mean imprisonment.

The legislative history of the Act, alongside the common law history and the dictionary definition of custody, demonstrate that physical confinement was the gateway to habeas jurisdiction. The combined consideration of the common law tradition, dictionary definition, and legislative history also strongly suggest, if they do not guarantee, that "a reasonable person" consulting "the text of the law, placed alongside the remainder of the corpus juris" would have understood custody to mean nothing less than imprisonment. ^[42] Of course, this was precisely the United States Supreme...