Micah Quigley (Stanford Constitutional Law Center) has posted What Is Habeas? (82 pages) on SSRN. Here is the abstract:
The debate about post-conviction habeas for state prisoners is long-running, heated, and conceptually hazy. A majority of the Court has expressed dissatisfaction with the broad swath of constitutional errors that can currently give rise to habeas relief. The way the Court sees it, a broad writ is inefficient, untraditional, and bad for federalism. The consensus view among habeas scholars is that habeas should be, at the very least, as broad as it currently is: a broad writ is just, historically pedigreed, and good for constitutionalism.
But which type of law is this debate about—unwritten law or statutory law? It is impossible to have a coherent debate without answering this question. Yet the question has gone unasked for decades. Some scholars and jurists (of both narrow- and broad-writ persuasions) implicitly frame the debate in common law terms. Others cast it as a statutory issue but go on to treat the statutes more like vehicles for judge-made law than as binding legislative commands.
This article argues that the issue is one of statutory law, and it offers the first thoroughgoing analysis of the relevant texts. When Congress extended federal habeas jurisdiction to state prisoners in 1867, it gave the courts no authority to discharge validly convicted prisoners. But by reenacting the same text in 1948, Congress may have ratified the Court’s interpretations of the 1867 Act as they then stood. The result might be a sort of middle-ground position—a narrower writ than petitioners would hope for, but a broader one than the Court seems to be navigating toward.
Thanks to David Kinnaird (who also has an important new article on habeas) for the pointer.
Posted at 6:05 AM