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The Gutted Writ: On Habeas Corpus | The Nation

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The Gutted Writ: On Habeas Corpus

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On a lazy afternoon in February 1961, Wilbert Rideau decided to rob a bank in Lake Charles, Louisiana. Rideau, a smart but impulsive eighth-grade dropout from a violent home, had counted on making a quick, clean getaway, just like the ones he'd seen in the movies, but his plans unraveled during the heist when a phone call to the bank revealed that the police were closing in. Rideau took three hostages, commandeered a car and, as darkness fell, got lost on the back roads outside town. At a bayou crossing the passengers bolted, and Rideau opened fire. Two survived and vanished into the night, but the third, a teller named Julia Ferguson, was wounded by the gunfire and then stabbed to death by Rideau with a hunting knife. A 19-year-old black man had killed a white woman. In no time, Rideau was under arrest.

In the Place of Justice
A Story of Punishment and Deliverance.
By Wilbert Rideau.
Buy this book.

Habeas Corpus
From England to Empire.
By Paul D. Halliday.
Buy this book.

About the Author

Robert Perkinson
Robert Perkinson teaches at the University of Hawaii at Manoa and is the author of Texas Tough: The Rise of America...

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Outside the jail, a mob formed. "Hang that nigger," a voice called out. But the officers held their man, confident that justice would be swift and severe. "It was a good little town back then," a deputy sheriff later explained to a reporter. "Ever'body did their job. The prosecutors, the law enforcement.... You didn't have to worry about lynching because they lynched 'em for you."

The trial, as Rideau recalls in his gripping memoir In the Place of Justice, was "merely a formality," played out by white attorneys before a white judge and an all-white jury. "I was the only black in sight, a fly in a bowl of milk," he writes. The place was Calcasieu Parish, at the height of the backlash against the civil rights movement, when Louisiana lawmakers had voted to close down the state's public schools rather than integrate them. Rideau was guilty of terrible crimes—armed robbery, kidnapping and homicide—but the district attorney stretched and suppressed evidence to prove premeditation, a necessary condition for a capital conviction. Julia Ferguson's stabbing wounds became an attempted beheading, an embellishment later undermined by pathology photographs. A meandering oral confession got replaced by a tidier version, written by an FBI agent, that detailed plans to murder every witness. Physical evidence from the crime scene disappeared. The verdict was certain: death.

When it reviewed the roughshod proceedings on appeal, the US Supreme Court assailed Calcasieu Parish's "kangaroo court" and reversed the conviction. But a second trial before another all-white jury in the same venue returned the same verdict. At that point the defendant would have run out of options were it not for an ancient legal instrument that dates back at least to the sixteenth century, and indirectly to the Magna Carta: habeas corpus. Literally an order to "have the body" of a detainee brought into court to assess the legality of his or her confinement, the writ of habeas corpus has long been celebrated in Anglo-American jurisprudence as "a fundamental safeguard against unlawful custody" and "a critical check on the executive." As the writ gained strength in the decades around England's Glorious Revolution, it helped to vanquish absolutism and lay the groundwork for the modern era's protections of individual rights. Architects of the early American Republic regarded habeas corpus as so indispensable that they enshrined it in the Constitution, before the Bill of Rights, and set an exceedingly high bar to its suspension, only "when in cases of rebellion or invasion the public safety may require it." Hailed by William Blackstone as a "stable bulwark of our liberties," the writ has figured prominently, if inconsistently, in protecting disfavored minorities and mitigating repression throughout the common-law world. In the legendary Somersett case of 1772, a habeas petition led to the abolition of slavery in England, though not yet its colonies. In 2004 the Supreme Court ruled in Hamdi v. Rumsfeld that the Bush administration's indefinite detention of suspected terrorists who are US citizens without judicial review was constitutionally indefensible. Even during the "most challenging and uncertain moments," the majority held, "the Great Writ of habeas corpus" remains in force, allowing citizens, aliens and even designated enemy combatants to challenge involuntary confinement and demand "due process of law."

In Rideau's case, habeas corpus provided a second entry into federal court, which ordered yet another trial. Louisiana then sought and won a third death sentence, but the delays allowed Rideau to survive until 1972, when the Supreme Court, in Furman v. Georgia, vacated every capital conviction in the country. After Furman Rideau was resentenced to life imprisonment, and his court-appointed attorneys bid him farewell, saying they had done everything they could for him. Sent to Angola, a former slave plantation that by the 1970s was "the most violent prison in America," he was left to rot but instead built an extraordinary career. He started reading, then writing, and eventually became a respected, award-winning journalist from behind Angola's walls. Life magazine called him "the most rehabilitated prisoner in America," but partly because one of his former hostages lobbied hard for his perpetual confinement, his repeated appeals for clemency went nowhere.

That is, until habeas corpus again came to his rescue. A literary scholar named Linda LaBranche took an interest in his case and started poring over old jury selection records. She found incontrovertible evidence of racial discrimination in Rideau's trials, and through the flexible, open-ended provisions then permitted in federal habeas practice, she was able to help secure Rideau a fourth shot at justice in 2005. This time, ably represented by a team of pro bono attorneys, Rideau was convicted of manslaughter rather than premeditated murder. Having already been incarcerated for forty-four years, a period twenty-three years longer than the maximum sentence for manslaughter, Rideau went free. He now lives in Baton Rouge, where he has settled down with LaBranche and a brood of cats. "I'm only here today because of habeas corpus," he said in a recent interview. "It saved my life."

Rideau's commutation and ultimate release signal the enduring potency of habeas corpus, but also its practical impotence. What jurists have long called "the Great Writ of Liberty" did its work, but at an excruciating pace. That Rideau's case unfolded during a period of relative vitality in habeas jurisprudence makes his story all the more troubling. Since the 1990s, lawmakers have increasingly circumscribed the writ, imposing rigid time limits and erecting formidable barriers between state and federal courts. In today's legal climate, a defendant like Rideau would have almost no chance of returning to freedom or even escaping execution. Habeas is becoming "an illusory writ," says George Kendall, one of Rideau's lawyers and a habeas and death penalty expert. In the war on crime, the war on terror and the new war against undocumented immigration, the Great Writ is being gutted.

Paul Halliday's sweeping, scrupulously researched Habeas Corpus: From England to Empire examines the capacities and contradictions of this remarkable legal device. A historian at the University of Virginia and an occasional contributor to amicus briefs in noteworthy habeas cases, Halliday dismisses conventional paeans to the writ. Focusing less on landmark decisions than on thousands of quotidian cases from the sixteenth to the eighteenth century, recorded on parchment and bound with leather thongs, he pieces together an ambivalent story with unexpected origins. Rather than heralding habeas corpus as a "palladium of liberty," he shows how, over the course of centuries, habeas has extended state power as well as constricted it, facilitated empire as well as regulated its reach, and how, in periods of crisis and demagoguery, princes and parliamentarians have muffled the "sighs of prisoners" despite the venerable writ's promise to hear them.

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