AuthorWood, Diane P.
PositionResponse to Henry J. Friendly, University of Chicago Law Review, vol. 38, p. 142, 1970


The late great physicist Richard Feynman is thought once to have said "If you think you understand quantum mechanics, you don't understand quantum mechanics." (1) Or maybe the idea expressed in that quip came from Niels Bohr, who is quoted as saying, "Anyone who is not shocked by quantum theory has not understood it." (2) For our purposes, it does not matter who said it first: the key point is that there are some fields for which a little knowledge actually conceals the true nature of the challenge. It would be an overstatement to say that the law of habeas corpus approaches the mind-bending complexity of quantum mechanics. (3) But habeas corpus has tied courts and legal scholars into knots for many years. One of the finest efforts to disentangle it--and to grapple with the question how, if at all, habeas corpus should be used for those whose detention flows from a criminal trial--is now fifty years old. I am speaking of Judge Henry Friendly's thoughtful article, published in 1970 in the University of Chicago Law Review, entitled Is Innocence Irrelevant? Collateral Attack on Criminal Judgments. (4)

Habeas corpus law has not remained static during the half century since Judge Friendly wrote, but neither has it provided satisfactory answers to the problems that he highlighted in his article. Unfortunately, many of the changes--well intended as they were by the enactors and implementers--have done nothing but create endless hurdles, loops, and traps for potential users. Enormous resources are poured into this elusive remedy. The rule of law is not well served when people are told that they have a remedy, but in fact they do not. Far better to have truth-in-labeling, so that the cases that deserve collateral review get it, and those that do not are more clearly identified from the outset and quickly dismissed. This is the goal that Judge Friendly set for himself in his article, but unfortunately it is not one that we have yet attained. Whether that is because of flaws in his suggestions, or failures to adopt them, is the subject of this Article. The answer, I suggest, is a little of both: some of his suggestions need further refinement, and others simply need to be implemented more vigorously. In the end, a remarkable number of Judge Friendly's observations still apply to today's writ, and thus many of his prescriptions remain well worth legislative attention.


    The Latin phrase "habeas corpus" is written in the second-person present subjunctive mood of the verb "habere," which means "to have." "Habeas corpus" thus does not mean "You have the body." That would be a present indicative statement, merely descriptive of the current state of affairs. Instead, it means something more like "You may have the body [if you can justify your custody]," or "Should you have the body?" Indeed, the use of the subjunctive mood is doing all the work here: it is what drives the writ, which for centuries has been understood to run to the custodian and to command that custodian to justify the continued detention of the applicant. Once the person has been released from custody and all cognizable collateral consequences of incarceration have ceased, the petitioner no longer has an active controversy and the habeas corpus petition must be dismissed. (5) Dismissal is also required if the petitioner dies before the case is resolved. (6)

    Following the lead of no less an authority than William Blackstone, it has been fashionable to trace the old English writ of habeas corpus back to Magna Carta itself. In his Commentaries, he wrote that the writ of habeas corpus ad subjiciendum is a writ of right, "established on the firmest basis by the provisions of Magna Carta, and a long succession of statutes enacted under Edward III." (7) Later scholars have found this claim to be overblown, (8) yet they agree that the writ is a very old one. Codified in 1679 during the reign of Charles II, the writ of habeas corpus crossed the Atlantic largely on Blackstone's back--his Commentaries on the Law of England were on every colonial lawyer's desk. It was he who called the writ of habeas corpus ad sub-jiciendum "the most celebrated writ in the English law." (9) And from there the writ shows up in the U.S. Constitution, in Article I, Section 9, Clause 2--but not, as commentators have pointed out, as an affirmative grant of power to issue writs of habeas corpus. (10) Instead, the Constitution does no more than to protect against the suspension of the "Privilege of the Writ of Habeas Corpus," without defining what that writ might be, with exceptions allowing suspension during times of rebellion or invasion. (11)

    The state courts were entitled, then and now, to handle habeas corpus as they wished. But at the federal level it is Congress that has put meat on the bones of the constitutional language. And it has done so ever since the First Judiciary Act, section 14 of which gave the federal courts the power to issue writs of habeas corpus. (12)


    It was not always obvious that the writ would be available to persons whose custody resulted from judicial proceedings, as opposed to those who were in some form of executive detention. Put bluntly, the custodian of someone in the former class has an easy answer to the question "why are you detaining this individual": the response is "because he or she was accused, tried by a jury (or the court, or admitted guilt), and has been sentenced to prison." This is quite different from the answer that the custodian of a person the police simply grabbed from the street and threw in jail would give. Supreme Court decisions such as Boumediene v. Bush (13) and Immigration and Naturalization Service v. St. Cyr (14) illustrate the distinctive nature of the analysis required for the latter group of cases. This Article, like Judge Friendly's, however, is concerned solely with the first group--that is, convicted prisoners who seek to avail themselves of the writ of habeas corpus. It was not until 1867 that the federal courts were empowered to grant relief to both state and federal prisoners, (15) and so this is a convenient starting point for a quick look at the way in which habeas corpus has functioned.

    The 1867 Act empowered all federal courts and their judges or Justices, acting "within their respective jurisdictions," to "grant writs of habeas corpus in all cases where any person may be restrained of his or her liberty in violation of the constitution, or of any treaty or law of the United States." (16) Initially, the 1867 statute did not trigger huge numbers of petitions; to the contrary, as Lewis Mayers points out, that statute "repos[ed] almost quiescent for decades," only to be revealed as "a sleeping giant" in the 1950s and 1960s. (17) Mayers argues that the habeas corpus statute was intended to protect the rights of citizens newly freed from slavery and that there is in fact "no foundation for the [Supreme] Court's assertions that the 1867 act was intended to afford a new remedy for state prisoners." (18) Nonetheless, that is the path that the statute ultimately took--a development that was impossible to contradict by the mid-twentieth century.

    In 1948, Congress undertook a comprehensive revision of the Judicial Code. (19) It endeavored, for the most part successfully, to make few substantive changes to the law, and the habeas corpus provisions of the 1867 Act were no exception. The 1948 revision codified the provisions relating to the writ for state prisoners in 28 U.S.C. [section] 2254, and it formally added language requiring that group of petitioners to exhaust their state remedies before turning to federal court. (20) The 1948 codifiers also took steps to relieve courts from the unequal burden of petitions they were receiving from federal prisoners--petitions that were heavily concentrated in districts that housed federal prisons, given the requirement to seek the writ in the district of confinement. (21) They did so by providing a substitute motion, 28 U.S.C. [section] 2255, for federal prisoners who wished to challenge their convictions or sentences; that motion had to be brought in the district of conviction. (22)

    Although the procedural apparatus did not change much between 1867 and 1996, the same cannot be said of the cognizable grounds for relief. Before 1867, the common wisdom was that a person confined pursuant to judicial process--that is, a prisoner--could obtain habeas corpus relief only if the court that rendered the judgment lacked jurisdiction to do so. (23) That rule was loosened in 1867, though by how much and for whom is debatable. Nonetheless, it is fair to say that federal prisoners could now complain about the convicting court's jurisdiction, about the constitutionality of the statute of conviction, and about the lawfulness of the sentence. "Pure" constitutional challenges, however, were rare.

    The modern expansion of habeas corpus can be dated to two decisions from the early twentieth century: Frank v. Mangum (24) and Moore v. Dempsey. (25) Both arose out of state court proceedings; both involved a total breakdown of the criminal justice system; and both petitioners asserted that their due process rights under the Fourteenth Amendment had been violated. (26) In Frank, the Court nonetheless refused to issue the writ. (27) In Moore, it reversed course and did so. (28) Moore thus laid the doctrinal basis for broader federal power to overturn the results of a state court proceeding. But, perhaps because of the extreme facts of the case, or perhaps because the law changes slowly, it was some time before courts began to exercise that power.

    It was the case of Brown v. Allen, (29) which involved the case of an African American defendant who had been tried for murder and sentenced to death before a jury that had been selected in a racially discriminatory way, that marked the beginning of an era of robust federal court...

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