The Hidden Costs of Habeas Delay

Abstract

Because habeas petitioners seek a court order for liberty rather than compensation, judges have a duty to decide habeas petitions promptly. But increasingly, the federal courts have fallen behind on their heavy habeas dockets, and many petitions — some of which are meritorious — remain undecided for years. First, this Article makes the normative and historical argument that speed must be, and always has been, central to the function of habeas. Second, it analyzes newly compiled Administrative Office of the United States Courts data on more than 200,000 habeas petitions and demonstrates empirically for the first time that there is a widespread and growing problem of delay in the resolution of habeas petitions in the federal courts. Third, this Article offers a specific and concrete remedy for the habeas delay problem, recommending that the Judicial Conference of the United States require judges to identify publicly all habeas petitions that have been pending in their chambers for more than six months, just as the Civil Justice Reform Act requires them to do for all other civil motions.