AuthorKing, Nancy J.
PositionAntiterrorism and Effective Death Penalty Act - AEDPA and the PLRA After 25 Years
  1. EQUITABLE AUTHORITY UNDER [section] 2241 II. RESIDUAL EQUITABLE POWERS IN [section] 2254 AND [section] 2255 CASES The Antiterrorism and Effective Death Penalty Act (AEDPA) (1) was the most significant statutory development in habeas law in more than a century. For this symposium reflecting on the statute's twenty-fifth anniversary, I submit that AEDPA's significance extends beyond its many restrictions on relief. It is also important for its preservation of the traditional, adaptable habeas remedy under 28 U.S.C. [section] 2241, and residual equitable authority of federal courts addressing petitions under 28 U.S.C. [section][section] 2254 and 2255. The role that this equitable power played in litigation by prisoners during the first year of the COVID-19 pandemic suggests how essential the writ's equitable foundations are to its historic function as a failsafe for future crises in confinement. Those foundations deserve clarification and protection.


    When Congress created new statutory provisions for attacks on state criminal judgments ([section] 2254) and federal criminal judgments ([section] 2255) in 1948, it retained 28 U.S.C. [section] 2241 as the traditional habeas remedy. (2) Nearly forty years later, AEDPA restricted review for prisoners challenging criminal judgments under [section][section] 2254 and 2255 but did not modify review for petitioners seeking relief under [section] 2241. That provision continues to provide that a federal court may grant a writ of habeas corpus if a prisoner "is in custody in violation of the Constitution or laws or treaties of the United States." (3) Section 2243 authorizes courts to dispose of cases under [section] 2241 "as law and justice require." (4) "Section 2241 codifies traditional habeas corpus relief, which," as the Supreme Court has stated, "is, at its core, an equitable remedy." (5)

    The flexibility of the traditional writ of habeas corpus has allowed federal courts to provide judicial review for claims of unconstitutional detention in various contexts until a more customized judicial remedy is developed. (6) Both state and federal prisoners continue to use petitions under [section] 2241 to challenge the constitutionality of government confinement when those challenges do not fall within either [section] 2254 or [section] 2255, including double-jeopardy challenges by state pretrial detainees, (7) and post-commitment decisions affecting when prisoners serving criminal sentences will be released. (8)

    Section 2241 continued to serve this backup role during the COVID-19 pandemic for medically vulnerable prisoners, at least in some federal courts. When the pandemic struck, prisoners turned to the courts for protection from the deadly virus using an assortment of statutory remedies. As the invaluable analyses of Lee Kovarsky and Brandon Garrett have so ably shown, (9) most of these efforts, including habeas petitions seeking release under [section] 2241, failed for a variety of reasons. But some habeas class actions did succeed in securing judicial oversight of unconstitutional detention. Successful petitioners alleged that, given their specific medical vulnerabilities, any confinement violated their right to be free from cruel and unusual punishment under the Eighth Amendment. (10) These federal habeas cases were small in number compared to cases granting relief by state and federal courts using other remedies such as compassionate release. (11) But they deserve attention as illustrations of the role that [section] 2241 can play in extraordinary times.

    The pathway to judicial review for prisoners asserting confinement in violation of the Eighth Amendment under [section] 2241 was not open in all circuits. This inconsistent treatment reflected divisions over which claims of unconstitutional detention must be filed as habeas actions, rather than as civil-rights suits under either [section] 1983 or Bivens actions. Where circuit precedent that suggested that habeas was unavailable for any claim involving conditions of detention, regardless of the relief sought, petitioners faced a dead end. (12) Elsewhere, courts declined to dismiss for this reason, noting that the Supreme Court has yet to consider the validity of a conditions-based claim for release under [section] 2241, (13) and that in Preiser v. Rodriguez, (14) the Court held that a state prisoner's challenge "to the fact or duration of his confinement," must be filed as a habeas action, not a suit under [section] 1983. (15) They concluded that medically vulnerable prisoners properly filed their petitions under [section] 2241 when they challenged "the fact of confinement" by seeking immediate release, not improved conditions, and alleging that for them, any confinement was unconstitutional. (16)

    Yet even in courts that acknowledged habeas jurisdiction over these claims, petitioners faced dismissal for failure to exhaust other remedial avenues first. (17) Finally, when courts did reach the merits, the demanding and unsettled (18) standards for proving a violation of the Eighth Amendment often barred relief. (19)

    Despite these obstacles, a number of habeas class actions did succeed in leveraging relief through court orders or settlement agreements. These include--so far--cases filed by prisoners serving criminal sentences in at least (20) six different districts: in California, where the court is currently overseeing a preliminary injunction for prisoners at FCI Lompoc and USP Lompoc; (21) in Connecticut, where prisoners at FCI Danbury secured a preliminary injunction to accelerate the process for evaluating inmates for home confinement and compassionate release, leading to settlement in July 2020; (22) in New York, where after more than a year of court oversight, the case ended in ended in settlement in July of 2021 and MCC New York closed in October 2021; (23) in Ohio, where despite the Sixth Circuit's decision vacating a preliminary injunction, (24) discovery continued until the case involving FCI Elkton ended in settlement in May 2021; (25) in Michigan, where parties in a case involving the Oakland County Jail reached a settlement agreement in summer 2021; (26) and in Maryland, where a case involving the Prince George's County Correctional Center settled in June of 2021 after the court granted a preliminary injunction; (27 * 29) and where another case filed by petitioners in the Chesapeake Detention Facility settled in April 2021. (28) Other successful cases involved immigration detainees as well. (29)

    Granted, this use of [section] 2241 as a remedy for imperiled prisoners during the pandemic is limited in scope, a small part of what Garrett and Kovarsky have condemned as a "flimsy judicial response." (28-29-30) Yet for the petitioners in these cases, whose claims did not fit neatly under [section] 2254 or [section] 2255, and who were able to meet the stringent showings required for the merits of their Eighth Amendment claims, the traditional habeas remedy under [section] 2241 showed its worth as an indispensable gap-filler for safeguarding constitutional rights.

  3. RESIDUAL EQUITABLE POWERS IN [section] 2254 AND [section] 2255 CASES

    The equitable power that AEDPA left...

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