Who Has the Body? The Paths to Habeas Corpus Reform

• Date: 01 September 2004
• DOI: 10.1177/0032885504268180
• Author: Cary Federman
• Published date: 01 September 2004
• Subject Matter: Articles

10.1177/0032885504268180
THE PRISON JOURNAL / September 2004
Federman / WHO HAS THE BODY?
WHO HAS THE BODY?
THE PATHS TO HABEAS CORPUS REFORM
CARY FEDERMAN
Duquesne University
The purpose of this article is to place the Antiterrorism and Effective Death Penalty
Act (AEDPA) of 1996 within a political and historical framework that describes the
effort by the Supreme Court and various interested parties to restrict prisoners’access
to the federal courts by way of habeas corpus. Of principal concern here is how an act
of terrorism against the United States provides an opportunity for Congress to restrict
death row prisoners from obtaining habeas corpus review. Along with an analysis of
Supreme Court decisions, three attempts to limit federal habeas corpus review for
state prisoners from the late 1980s to the middle 1990s are described, all of which
helped Congress to pass the AEDPA, a law that ratified the Supreme Court’s most
restrictive habeas corpus decisions dating back some 35 years.
Keywords: Antiterrorism and Effective Death Penalty Act; antiterrorism
law; death penalty; habeas corpus; Supreme Court
[The Antiterrorism and Effective Death Penalty Act of 1996] greatly restricts
the power of federal courts to award relief to state prisoners who file second or
successive habeas corpus applications. If the prisoner asserts a claim that he
has already presented in a previous federal habeas petition, the claim must be
dismissed in all cases. And if the prisoner asserts a claim that was not presented
in a previous petition, the claim must be dismissed unless it falls within one of
two narrow exceptions. One of these exceptions is for claims predicated on
newly discovered facts that call into question the accuracy of a guilty verdict.
The other is for certain claims relying on new rules of constitutional law.
—Tyler v. Cain (2001)
Habeas corpus is the principal means by which state prisoners attack the
constitutionality of their convictions in federal courts. Variously called “the
great writ of liberty,” a “human right,” and “a bulwark” and “palladium” of
English liberties, the ancient writ of habeas corpus has achieved a status in
American jurisprudence that has surpassed even those rights deemed by the
THE PRISON JOURNAL, Vol. 84 No. 3, September 2004 317-339
DOI: 10.1177/0032885504268180
© 2004 Sage Publications
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U.S. Supreme Court to be preferred or fundamental, such as free speech and
the right to privacy. In part because of the writ’s historic association with the
Magna Carta, many jurists and legal scholars consider habeas corpus as a
tool of liberty in the fight against governmental oppression (Chafee, 1952,
chapter 3; Dicey, 1961, chapter 5; Ex parte Watkins, 1830, p. 201; Fay v.
Noia, 1963, pp. 400-401; Steiker, 2000; Wade & Philips, 1960, chapter 35;
Wiecek, 1977, p. 157).
Today, however, the writ of habeas corpus stands accused of setting the
guilty free. Critics charge that habeas corpus releases the convicted, not on
innocence grounds or even for reasons of clemency, but on technical princi-
ples of law. Habeas corpus allows a solitary federal judge—so many miles
removed from the crime scene and perhaps some 10 years after the initial
conviction was rendered, after memories have faded and witnesses have
either moved away or died—to find a due-process violation sufficient
enough to overturn the judgment of numerous state judges and 12 jurors. To
add insult to injury, habeas corpus interferes with the workings of what
Supreme Court Justice Felix Frankfurter once called “our federalism”
(Collins, 1992).
Recent decisions by the Supreme Court regarding habeas corpus, particu-
larly death penalty cases such as Tyler v. Cain (2001) and Felker v. Turpin
(1996), have done nothing more regarding the rights of prisoners who attack
their convictions in federal courts than uphold restrictions passed by Con-
gress in 1996 that prevent state prisoners from successfully attacking their
convictions in federal habeas courts. And yet, the limitations on state prison-
ers’ access to habeas corpus found within the Antiterrorism and Effective
Death Penalty Act (AEDPA) of 1996 do nothing more than uphold more than
30 years of Supreme Court decisions on the subject. The purpose of this arti-
cle is to explain the various paths that led to the AEDPA. There are three: con-
gressional, interest group, and the Supreme Court’s habeas decisions.
Regarding interest groups, I focus on three important proposals from 1988 to
1990 that sought to modify and limit habeas appeals. I also examine the ways
in which the Supreme Court’s view of habeas petitioners as convicted crimi-
nals and drains on the judicial system through time hardened the attitudes of
members of Congress to the point that they passed antiterrorist legislation in
1996 that was largely symbolic but which has had real effects on the lives of
convicted criminals (Tushnet & Yackle, 1997/1998). My focus will be on the
writ’s relation to capital cases only, because most (if not all) of the criticisms
of habeas corpus stem from concerns that the writ is responsible for the
length of time it takes to go from conviction to execution.

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Federman / WHO HAS THE BODY?
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FROM THE COMMON LAW TO THE GILDED AGE
In Anglo-American jurisprudence, habeas corpus (“you have the body”)
is an institutional means to test the proposition that individuals have the right
to be free from arbitrary arrests. Between the American founding and Recon-
struction, the justices of the Supreme Court understood habeas corpus as it
had operated in England (Ex parte Kearney, 1822). That is, it could not be
used after conviction to contest a court’s decision to incarcerate. Only execu-
tive clemency could rectify claims of a miscarriage of justice (Karlen, 1967,
pp. 217-219; Kobil, 1990/1991). Yet by situating the writ in Parliament and
not in the king’s courts, the English by the 17th century embedded habeas
corpus within the language of civil liberties and legislative autonomy,
thereby rejecting the idea, later adopted by the U.S. Supreme Court, that
habeas corpus is a mere formal process (Bandes, 1996, p. 503). Both the king
and Parliament saw clearly what the Americans would later learn with much
difficulty: A granted writ alters jurisdictional boundaries.
Regardless of what the English knew of the great writ’s jurisdictional
capabilities and how they sought to contain it, it is clear that both the framers
of the Constitution and the justices of the Supreme Court (both past and pres-
ent) feared its effects on the states’ criminal procedures. Consequently, they
chose to filter habeas corpus through the federal structure of the new Ameri-
can state. Notably, the Judiciary Act of 1789 prohibited state prisoners from
petitioning federal courts for habeas corpus. However, following a series of
antebellum sectional crises in which various states arrested (or threatened to
arrest) federal revenue officers (in 1815 and 1833), military personnel
(1863), and a foreign national (1842), Congress expanded federal habeas
corpus and removal jurisdiction to the state level (Habeas Corpus Acts, 1815-
1867). Although explicitly temporary in nature and designed to protect fed-
eral officers, not state convicts, these various removal and habeas corpus stat-
utes created a pathway to the states (Lucie, 1986) that eased passage of the
Habeas Corpus Act of 1867.
The 1867 act states in part that
The several courts of the United States . . . within their respective jurisdictions,
in addition to the authority already conferred by law [the 1789 act], shall have
power to grant writs of habeas corpus in all cases where any person may be
restrained of his or her liberty [italics added] in violation of the constitution, or
of any treaty or law of the United States. (Habeas Corpus Acts, 1815-1867)
The 1867 act stands as an example of Reconstruction-era state making. With
a statutory command to the federal courts to have the body of any prisoner

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THE PRISON JOURNAL / September 2004
seeking relief, the 39th Congress ignored state sovereignty concerns regard-
ing finality of punishment and codified the budding relationship prisoners
would have with the national judiciary under the Fourteenth Amendment.
But the Radical Republican victory of the post-Civil War era was short-
lived. Despite Congress’ boldness in the face of a history of state control of
punishment, the wording of the Habeas Act does not establish a bright-line
relationship between the incarcerated and the federal courts that bypasses the
state court system (Wade v. Mayo, 1948). The Supreme Court was free to
ignore the nationalist intent of the legislation (particularly after the end of
Reconstruction in 1877) and focus on the writ’s common-law legacy in the
United States—and it did. The act probably assumes common-law practices
of using the writ as a preconviction remedy (Oaks, 1964/1965), but nothing
in the language of the act prevents the writ from being used by state prisoners
as a postconviction attack on a state court’s judgment, because, as Marc
Arkin (1995) wrote, “incarceration was not routinely imposed as a means of
postconviction punishment for criminal acts until the nineteenth century”
(p. 11). The problem with the 1867 habeas law is that, if used as a
postconviction remedy, the determination of equitable relief falls not to Con-
gress or to the states but to Supreme Court justices and federal court judges
who...