The Gutted Writ: On Habeas Corpus
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.
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.
In early modern England, the judiciary was not a separate branch of government but an extension of the sovereign's law, Halliday explains. Writs of habeas corpus, accordingly, functioned less to safeguard individual liberty—still an embryonic concept—than to regulate the conduct of jailers. Faced with a polyglot legal landscape in which myriad entities, from ecclesiastical courts to justices of the peace, had been granted the franchise of imprisonment, powerful jurists, especially on King's Bench, the common law court upon which the monarch theoretically sat, used habeas corpus to review the decisions of lesser magistrates in order to ensure that his majesty's subjects were lawfully detained. In this way, Halliday argues, enterprising judges close to the crown made themselves into a superior court and "put themselves at the heart of the state."
Acting in the name of the sovereign and asserting the authority to "monitor the work of all other jurisdictions," King's Bench (Queen's Bench when the monarch was a woman) deployed the writ in an extraordinary array of cases, reshaping it in the process. Impressed soldiers, asylum inmates, slaves and prisoners of war sought release through habeas proceedings, sometimes successfully. Long before the development of modern family law, women called on the writ to escape abusive husbands, though they had to convince the court that a man's violence exceeded "the lawful government of his wife." Forged in common law rather than by statute, writs of habeas corpus, in the hands of determined judges, could reach almost any detainee, held under any circumstances, located anywhere under British control.
In the turmoil of the seventeenth century, the judiciary went further. If habeas began as a "writ of the prerogative by which the king demands account for his subject," Halliday writes, the justices of King's Bench increasingly claimed the powers of sovereign prerogative "for their own use, thereby making themselves the sun that lit the heavens." As the crown was weakened, judges asserted their independence, with startling results. In the wake of revolution in the late 1680s—"a period of rampant fear," with war raging in Ireland and an invasion from Catholic France looming—King's Bench reviewed the records of 147 detainees charged with treason and other "wrongs against the state" and ordered "bailed or discharged 80 percent," at a time when the very survival of the government hung in the balance. What started as a means of consolidating power had become a check on the powerful.
This was the golden age of habeas corpus, Halliday contends. Although Whiggish histories have depicted the Great Writ as marching ever forward, spreading freedom as it goes, Halliday shows that by the late eighteenth century, when Enlightenment revolutions were breaking out on both sides of the Atlantic, habeas corpus was in retreat. The advancing force was empire. While in one sense the centralizing authority exercised through habeas review standardized and thus facilitated the imperial reach of British law, the writ's promise to apply the law uniformly inevitably faltered before the inequalities and injustices of colonialism. Habeas corpus "traveled the globe," Halliday observes, but "suspension followed, like a shadow."
During the American Revolution, Parliament suspended the writ and for the first time made distinctions between detainees charged with committing offenses at home and abroad, with the result that "hundreds of American sailors" captured at sea were denied habeas relief and held indefinitely "not as POWs, but as traitors or pirates." In South Asia, habeas corpus arrived with the East India Company, but Halliday shows how statutory limitations on habeas—a topic too often ignored in the literature, he claims—"put Indians beyond the bounds of subjecthood" and empowered colonial governors to define "criminal tribes" and imprison or deport whole groups without trial. In response to the Mau Mau rebellion of the 1950s, hundreds of thousands of Kenyans, including Barack Obama's paternal grandfather, were rounded up, tortured or placed in concentration camps without judicial review. Habeas corpus cast no light of liberty there.
Halliday focuses mainly on sixteenth- and seventeenth-century England, but his attention to the perennial disappointments of the writ and its invidious intersections with empire make for fascinating reading in the twenty-first-century United States. Although habeas corpus is embedded in the Constitution and has been suspended by Congress only once, during a case of genuine rebellion in 1863, it faced epic challenges in the wake of September 11, when the Bush administration asserted unprecedented powers to unilaterally declare people "enemy combatants" and detain them at will, indefinitely and without independent review of any kind. Halliday's book suggests that the White House had ample, if selective and legally dubious, precedent for its aggressive posture. In response to "detestable conspiracies," both real and imagined, various British governments had pioneered all manner of habeas circumventions: removing prisoners to other countries, holding them on ships and building special prison camps on remote islands, where, "surrounded by waves," detainees were kept "beyond law's gaze." When challenged by the courts, administrators had sought and often won legislation to strip noncitizens of legal protections, indemnify jailers "who had done the ugly work" or simply suspend habeas corpus altogether—an increasingly common practice as the British Empire, and resistance to it, grew. In defending rendition, enhanced interrogation and indefinite detention at Guantánamo, legal theorists in the Bush administration thus borrowed from repressive tactics developed in colonial Ireland, Jamaica and New Zealand—conquered places that allowed the British sun never to set but where the law was too often put to sleep.
Halliday posits that "the history of habeas corpus traces an ongoing tension between the logic of detention and the persistent judge." By 2004 it seemed the judge might again be gaining the upper hand. In three cases decided in June of that year, as images of prisoner degradation at Abu Ghraib spread around the world, the Supreme Court condemned the Bush administration's "unchecked system of detention" and breathed new life into habeas corpus. Narrow majorities ruled on a number of key issues: citizens and aliens alike retain their habeas rights, even if they are declared enemy combatants; the executive's war powers do not insulate it from judicial review; and writs of habeas corpus have the power to reach any jailer anywhere who is subject to US law, even at Guantánamo Bay, which is officially Cuban territory but has been controlled by the United States since the Spanish-American War. Rejecting the Bush administration's most expansive arguments, the justices noted that the founders, having suffered British despotism, regarded "unlimited power" as "especially hazardous to freemen." As Justice O'Connor famously commented, "A state of war is not a blank check for the President."
The Court's rulings marked another milestone in the history of the Great Writ, yet the aftermath bears out Halliday's clear-eyed approach. Following the advice of Justice Scalia, who accused his fellow justices of "judicial adventurism of the worst sort" (ironically, just the sort of adventurism that created habeas and sustained it over four centuries), Congress in 2005 stripped Guantánamo detainees of their habeas rights, reinforcing Halliday's contention that legislators can be as hostile to civil liberties as executives. In two subsequent cases, most categorically in Boumediene v. Bush (2008), the Court struck back, again rejecting President Bush's determination to "govern without legal constraint" and Congress's willingness to let him. The majority ruled that under the Constitution lawmakers have no right to suspend the writ selectively and that military tribunals, as set up by the Pentagon, provide no "adequate substitute" for impartial, adversarial judicial review. Sweeping in scope, the decisions nonetheless left the vast majority of detainees in legal limbo: still incarcerated, still awaiting their day in court. Almost a decade after its creation—despite constitutional censure and promises by President Obama to shut it down—the prison camp that Amnesty International has called "the gulag of our times" remains mostly insulated from the rule of law. On the page, habeas corpus may have triumphed over the Bush administration's war of fear, but on the ground the "logic of detention" continues to unfold.
This disjuncture between promise and practice is equally pronounced, if less discussed, in other areas of modern US law. In the realm of immigration enforcement, where federal detention has expanded most rapidly in recent years, similar tensions have developed between the judiciary and the political branches, and with similar results. In 2001 the Supreme Court held in INS v. St. Cyr that immigration detainees have habeas rights and that deportation hearings managed by the Justice Department, an executive agency, cannot be walled off from judicial review, as Clinton-era statutes tried to do. In 2005 Congress responded with the Real ID Act, which in addition to setting up the rudiments of a controversial national ID card system, included scarcely noticed provisions to paralyze the writ of habeas corpus in immigration cases without actually killing it. By imposing thirty-day federal filing deadlines and limiting the purview of the judiciary to questions of constitutional law rather than the factual record of individual cases, the statute preserved habeas in name but in effect made it unavailable to thousands of detainees each year. "The government has so chipped away at habeas in immigration cases as to make it an almost meaningless right," says Lee Gelernt, an ACLU attorney who is building a case to challenge the new law. He adds that an executive-only approach to immigration enforcement has continued under the Obama administration, which detained 380,000 individuals on immigration violations in 2009, almost none of whom are provided access to counsel or even an independent court hearing, much less habeas review.
In conventional criminal law, the United States is unique in using habeas corpus primarily as a postconviction remedy. Invoking the writ successfully has never been easy, as the case of Wilbert Rideau makes clear. Nevertheless, postconviction habeas developed into an important alternative to direct appeals and as a mechanism of equity relief, especially in death penalty and civil rights cases. During the divisive crime debates of the 1990s, however, Congress passed the Antiterrorism and Effective Death Penalty Act (AEDPA), which put habeas petitions beyond the reach of all but the most capably represented and egregiously wronged criminal detainees. Extending legalistic restrictions already imposed by the Rehnquist Court, the law requires prisoners to exhaust all state remedies before turning to federal court, limits the ability of federal judges to question the decisions of trial courts and imposes various administrative burdens on petitioners, including strict deadlines for initial filings—all of which add up to insurmountable barriers for most inmates, who tend to be indigent, poorly educated and unrepresented by counsel. "AEDPA has been awful for criminal defendants," says Vanita Gupta, an ACLU attorney who under more forgiving state rules famously helped overturn a host of wrongful drug convictions in Tulia, Texas. "Its onerous, lawyerly demands and blanket restrictions have created a morass of litigation and severely curtailed the reach of the Great Writ." Even as America's prison population has swollen to an unparalleled size, a key conduit for release has thus been shut off, in effect rendering the country's first civil right an inaccessible right. As during the repressive ascendance of the British Empire, lawmakers in the United States have "bound the judge and muffled the prisoner's sighs."
Halliday's history of setbacks and shortcomings is indeed discomfiting. "Beginning with royal power" and ending with "detention of people on a scale that defies judiciousness," his book suggests that the "idea of habeas corpus"—that no person shall be detained except by due process of law—"has been more powerful outside of courtrooms than inside them." Yet his book is not without hope. Halliday shows how innovative and persistent judges turned an instrument of the king's prerogative into a "writ of majestic, even equitable, sweep" and managed, in some cases at least, to defend it against "a legislative onslaught on liberties of every kind." In thwarting the Bush administration's absolutist leanings, the Supreme Court has recently shown glimmerings of that same independence, but the results remain unclear. In the twenty-first century, habeas corpus can be as vital for the protection of individual liberties as it was in the seventeenth, but courageous judges—precisely the sort excoriated by Scalia—will have to make it so.