The Great Writ Diminished

Abstract

In 2007, an empirical study of 2,384 randomly-selected habeas corpus petitions filed in United States District Courts by state prisoners in non-capital cases found that district courts granted relief in only seven. This amounts to one grant out of every 284 petitions, or a grant rate of approximately 0.35 percent. The author, himself a district judge, has granted habeas relief in 12 cases out of approximately 300, resulting in a grant rate that is much higher than the rate found by the empirical study. Thus, if the author’s experience is any indication, on average district courts are not granting habeas petitions as often as they should be. If this is so, the Great Writ has been diminished. This article seeks to stimulate a discussion about the current state of habeas corpus. Relying on his own experience with habeas petitions, the author explains why habeas is an important component of our justice system and details the cost of a diminished writ. The article concludes by offering suggestions for making habeas corpus a more potent tool for protecting the constitutional rights of criminal defendants.