A Critical Perspective on Habeas Corpus History

Abstract

Determining the appropriate role of habeas corpus in the American criminal justice system has taken on new import because of uncertainty over the proper means to prosecute and punish accused terrorists. Unfortunately, the existing histories of the Great Writ fail to explain the repeated expansions and contractions of habeas doctrine throughout the last century. Without an understanding of where habeas has been, the courts are ill-equipped to chart its future. This article criticizes prior habeas histories for their inability to explain the evolution of the doctrine. It then shows that greater understanding can be gained by discarding the myth that habeas is a guardian of individual liberty in favor of interpreting the writ as a device that the U.S. Supreme Court uses to enforce its right to proclaim the law. This interpretation of the writ explains each expansion and contraction of the doctrine more effectively than prior histories. Although liberty interests have likely played little role in the courts use of the writ as a remedy in specific cases, the ideology associated with habeas corpus has done much to further liberty interests. The final section of this article shows that, like prior histories of the writ, the one presented here essentially interprets doctrinal change as a response to external factors. That interpretation is true, but incomplete. To fully understand the development of habeas doctrine, one must also internalize the extent to which that doctrine, and the ideology surrounding it, helped create change. With respect to habeas, a powerful liberty-supporting ideology has long helped to enable reformers to conceive of, and opponents to accept, new possibilities for expanding the rights of the accused. Less obviously, a counter ideology that sees habeas as a dangerous get-out-of-jail-free card has, ironically, also advanced liberty interests. This ideology has focused the attacks of reformers who would narrow criminal procedure rights on the writ itself rather than the substance of those rights.