Habeas Corpus

  • August 18, 2009
    Guest Post

    By Matt Kelley, who writes about prisoners' rights and criminal justice reform issues at change.org, where this piece was initially published. He also works as the Online Communications Manager at the Innocence Project. Views expressed here are his own and do not represent any organization.

    In an extremely rare move for the U.S. Supreme Court, the justices yesterday issued an order directing a federal judge to hold an evidentiary hearing in the case of Troy Anthony Davis, who has sat on Georgia's death row for nearly two decades for a crime he says he didn't commit. A pile of convincing evidence suggests that Davis is indeed innocent, and the court's move points to the strength of this evidence.

    This decision also confirms that Davis' attorneys - and the army of activists who have worked tirelessly on his behalf - are making themselves heard. The justices don't live in a vacuum, and at least six of them found yesterday that allowing a man to be executed before possible evidence of his innocence is fully considered would be a grave injustice and a violation of due process.

    Justices Antonin Scalia and Clarence Thomas were the lone dissenters, and new justice Sonia Sotomayor didn't participate. Scalia wrote a frightening dissent suggesting that he may consider the execution of an innocent person completely constitutional.

    He wrote: "This Court has never held that the Constitution forbids the execution of a convicted defendant who has had a full and fair trial but is later able to convince a habeas court that he is ‘actually' innocent." That's a scary sentence. But let's focus on the positive for a moment:

  • June 4, 2009
    Guest Post


    By Giovanna Shay is an Assistant Professor of Law at Western New England College School of Law where she teaches Postconviction Rights. Christopher Lasch is a Lecturer in Law and Robert M. Cover Fellow at Yale Law School. The authors can be reached at [email protected] and [email protected]

    Possible Implications for Habeas
    Although a civil rights case, Haywood may also have some implications for prisoners' habeas corpus actions. For the last thirty years, the Supreme Court has acted to narrow the scope of federal habeas review, increasingly relying on state courts to act as the central fora for post-conviction constitutional litigation. Considered in light of other recent decisions, Haywood might include the hint of a suggestion that at least some members of the court may be willing to subject the performance of state courts to greater scrutiny, to ensure they are not undermining federal law.

    To be sure, comity and federalism have been a greater concern in federal habeas cases reviewing judgments of state courts than in civil rights cases like Haywood, and these themes will doubtless continue to sound as the refrain of habeas decisions. The court has said that comity concerns are at their highest in the federal habeas context, while in § 1983 cases, exhaustion of state court remedies is not even required, although the Prison Litigation Reform Act (PLRA) does impose an onerous administrative exhaustion requirement. Nonetheless, Haywood may provide impetus for change.

  • June 3, 2009
    Guest Post

    By Giovanna Shay is an Assistant Professor of Law at Western New England College School of Law where she teaches Postconviction Rights. Christopher Lasch is a Lecturer in Law and Robert M. Cover Fellow at Yale Law School. The authors can be reached at [email protected] and [email protected]

    May 26, 2009, probably will be remembered as the day President Obama nominated The Honorable Sonia Sotomayor as the 111th Justice of the U.S. Supreme Court, and the day that the California Supreme Court announced its Prop. 8 decision. Even for those who read about the U.S. Supreme Court's opinions issued that morning, Montejo v. Louisiana (overruling Michigan v. Jackson), probably seemed the flashiest. For federalism nerds, however, Haywood v. Drown was yet another fascinating development in a very eventful day. In Haywood, five members of the court tried to hold open state courthouse doors for prisoners, cognizant that restrictive federal statutes - the Prison Litigation Reform Act and Anti-Terrorism and Effective Death Penalty Act- are already closing the federal courts to their claims.

    Haywood was a 5-4 decision in which the court held New York's Correction Law § 24 violated the Supremacy Clause. Correction Law § 24 stripped New York state courts of jurisdiction to hear damages actions by prisoners against state corrections officers, including suits filed under the federal civil rights statute, 42 U.S.C. § 1983. New York limited prisoners to filing damages suits against the state (not individual corrections officers) in the Court of Claims, where they had to meet a 90-day notice requirement, and were not able to seek a jury trial, attorney's fees, punitive damages or injunctive relief.

    The Opinions
    The majority opinion, written by Justice Stevens, held that "having made the decision to create courts of general jurisdiction that regularly sit to entertain analogous suits, New York is not at liberty to shut the courthouse door to federal claims that it considers at odds with its local policy." The court focused on state courts' concurrent jurisdiction over federal claims, writing that "state courts as well as federal courts are entrusted with providing a forum for the vindication of federal rights." The two exceptions to the presumption of concurrent jurisdiction, wrote the majority, are "when Congress expressly ousts state courts of jurisdiction," and "when a state court refuses jurisdiction because of a neutral state rule regarding the administration of the courts." Such a rule cannot be used "to nullify a federal right or cause of action that [state courts] believe is inconsistent with their local policies." That New York had divested its courts of jurisdiction over both federal and state law claims alike did not save the statute, according to the court. "Although the absence of discrimination is necessary to our finding a state law neutral, it is not sufficient." the majority wrote, "A jurisdictional rule cannot be used as a device to undermine federal law," it concluded, "no matter how evenhanded it may appear."

  • May 14, 2009
    BookTalk
    Bad Advice
    Bush’s Lawyers in the War on Terror
    By: 
    By Harold H. Bruff, Charles Inglis Thomson Professor of Law, University of Colorado at Boulder
    President Bush received bad advice from his lawyers regarding some crucial decisions in the war on terror, including National Security Agency surveillance of American citizens, detention and trial by military commission of suspected terrorists, and authorization of harsh interrogation techniques-the torture question. In each of these contexts, the President's lawyers made broad and even unprecedented claims of unilateral executive power after a secret process of decision. Their advice exceeded the bounds of professional responsibility.

    Legal advice to a President is always sympathetic to his policy goals. Advisers feel political and personal loyalty to the President who selected them. Competition for influence within the administration fosters telling a President what he wants to hear. Also, the culture of the Executive Branch ensures sympathy. Given these powerful incentives to support the President's policy agenda, what can and should constrain the lawyers? First, there is the obligation of the oath to defend the Constitution that they all take. The lawyers also have a second obligation in their professional responsibility to "exercise independent professional judgment and render candid advice." As Robert Jackson said, "the value of legal counsel is in the detachment of the advisor from the advised." We expect that distance from professionals of all kinds, our doctors for example.

    To buttress the duty of independent judgment, executive advisers need to accept the principle of the Steel Seizure case that Congress can lay down the law, even in time of war. Support of a broad initiative power for the executive is fully consistent with this principle. Some of President Bush's lawyers followed a theory that the executive has broad unilateral power in the foreign realm that Congress may not control, except perhaps by withholding funds or impeachment. This risks a destabilizing pursuit of executive hegemony, one very erosive of the rule of law.