A Unanimous Supreme Court Ruling Underscores the Limits of Habeas Corpus as a Remedy for State Prisoners
Pundits typically point to ideologically divided 5-4 rulings of the U.S. Supreme Court to chart the mood and progress of the Court. But in fact, 5-4 rulings are toss-ups, reflecting accidents of the timing of Justices’ appointments, retirements and deaths as much as anything else. If one wants to discern long-term trends on the Court, one would do better to look at the many uncontroversial cases the Court decides. Monday’s unanimous ruling in Metrish v. Lancaster would be a good place to start.
In Lancaster, the Court rejected habeas corpus relief for a man who was convicted of murder, even as the Justices acknowledged the possibility that, in preventing Lancaster from utilizing a defense that was on the books at the time of the crime, the Michigan courts may have violated his constitutional right to due process. The case thus provides a window into the success of conservatives’ decades-long campaign to weaken the availability of the writ of habeas corpus. It also shows how the center of opinion on habeas corpus has drifted far to the right during that period.
A Brief History of Habeas Corpus in the United States
Article I of the Constitution protects a right of habeas corpus—entitling prisoners to go to court to make their captors provide a legal justification for their detention. Prior to the Civil War, however, the federal writ of habeas corpus was generally only available to challenge detention by federal authorities. Fearful that the states of the former Confederacy would undermine federal rights—especially the rights of the freedmen and their allies—during Reconstruction, Congress expanded the writ, permitting challenges to state detention as well. The habeas statute has been amended and qualified in various ways since then, but its current core remains more or less what it was when it was enacted in 1867: It authorizes a court to order a prisoner released if he or she “is in custody in violation of the Constitution or laws or treaties of the United States.”
Nonetheless, over the last fifteen decades, there have been important changes to the way in which that provision is implemented. In the early days of the statute, federal courts granted nearly absolute deference to state court judgments. Habeas was available if a prisoner was subject to state executive detention, but if the prisoner had had a state trial—even a flawed one—federal courts were reluctant to grant habeas relief, so long as the state court had had proper jurisdiction over the case.
Over time, habeas as a “collateral” remedy for state prisoners expanded. First, federal courts held that a state court conviction would not bar federal habeas relief unless the prisoner had been given a “full and fair” opportunity to raise his federal claims. Then, for a time, habeas became an opportunity for federal courts to take a fresh look at state court convictions. Federal courts continued to give deference to state court factual findings, but for the roughly forty-year period beginning with the 1953 ruling in Brown v. Allen, federal courts decided legal questions on their own.
Inevitably, the liberalization of habeas rules sparked a conservative backlash. Conservative politicians and judges attacked expansive interpretations of the habeas corpus statute as being both soft on crime and insufficiently protective of states’ rights. As the appointees of Presidents Nixon, Reagan and George H.W. Bush replaced holdovers from the more liberal Warren Court, the Justices cut back on habeas, imposing both substantive and procedural limits on its availability.
Politicians got into the act as well, and not just Republican ones. In 1996, large bipartisan majorities in Congress passed, and President Clinton signed, the Antiterrorism and Effective Death Penalty Act (AEDPA). It codified some of the ways in which the Burger and Rehnquist Courts had restricted habeas, but it also added its own new limits, as well.
Perhaps the most significant new limit was AEDPA’s overruling of Brown v. Allen. Under AEDPA, federal courts no longer determine whether state courts correctly rejected a habeas petitioner’s federal claims; they only grant relief if the state courts applied federal law unreasonably—a deferential standard.
The Claim in the Lancaster Case
The Lancaster case involved the application of AEDPA’s unreasonableness test to a due process claim. Lancaster was tried for murder. He admitted to being the killer, but his lawyer argued that he was not guilty of murder due to his diminished mental capacity. At the time of his crime and his original trial, Michigan allowed a criminal defendant to argue that even if he was not legally insane, he nonetheless suffered from a mental illness that meant he could not have formed the specific intent that was necessary for him to be guilty of the crime charged.
Lancaster offered his diminished capacity defense and was convicted, but that conviction was later overturned. By the time the state sought to retry him, however, the Michigan Supreme Court had ruled, in an unrelated case, that a criminal defendant should not be permitted to argue diminished capacity to negate specific intent. According to the Michigan Supreme Court, state lower court precedents permitting that defense were inconsistent with a 1975 statutory revision of the statute governing mental illness defenses. Hence, at his retrial, Lancaster’s lawyer was prevented from making a diminished capacity defense.
Lancaster argued that by failing to permit him to use a defense that was on the books when the relevant conduct occurred, the state had violated his right to due process. The state courts disagreed but the U.S. Court of Appeals for the Sixth Circuit found Lancaster’s argument compelling and ordered habeas relief. Then, on Monday, the U.S. Supreme Court reversed the Sixth Circuit, reinstating Lancaster’s conviction.
According to the Supreme Court, Lancaster’s case fell somewhere in between two of the Court’s own prior precedents. In the 1964 case of Bouie v. City of Columbia, the Court held that due process forbade a state from retroactively applying a construction of a criminal trespass statute forbidding entering private property to people who refused to leave such property. In the 2001 case of Rogers v. Tennessee, the Court permitted the retroactive refusal of a state court to apply the common law rule requiring that the victim of an attack must die within a year and a day of the attack, in order for the perpetrator to be charged with murder. According to the Court in Lancaster, taking away the diminished capacity defense after the fact is more like a due process violation than the non-violation found in Rogers, but less like a due process violation than the violation found in Bouie.
And that was all that was needed to reject Lancaster’s claim under AEDPA, the Court reasoned. Where, exactly, Lancaster’s case lies on the spectrum running from Bouie to Rogers was not important. Maybe Lancaster’s due process rights were violated; maybe they were not. But so long as there is room for reasonable disagreement, the Court said, then the Michigan courts’ refusal to find a due process violation in Lancaster’s case could not be deemed “unreasonable.”
To be clear, the Court was saying that Lancaster’s trial may very well have violated his due process rights, but it did not so clearly violate those rights as to entitle him to habeas relief under AEDPA.
Heads I Win; Tails You Lose
If that result sounds draconian, then that should tell you something about how dramatically the Court and Congress have narrowed the scope of habeas relief over the years.
Indeed, things look even worse when one considers that both AEDPA and the pre-AEDPA case law severely limited the ability of prisoners to invoke so-called “new rules” of constitutional law as the basis for a habeas challenge. In deference to the supposed good faith of the state courts, the statute and the relevant precedents say that state courts need only try to apply the rules that were on the books at the time of the state court proceedings.
Thus, Congress and the Court had previously said that a prisoner may not benefit from new rules. Now, in Lancaster, the Court has added that a prisoner may not benefit from old rules either. For a state defending against a habeas petition, it appears that the only operative rule is Heads I win, tails you lose.
Three Reasons Why the Ground Shifted
Even if the result in Lancaster can be justified under AEDPA, there still remains the question of why the ground has shifted so far to the right on habeas cases over the last forty years or so. No doubt the answer is complex but I would point to three factors.
First, Republican and Democratic politicians alike have mostly concluded that there is no political angle for them in supporting civil liberties for criminal defendants. Although violent crime has declined substantially from the highs it reached after spiking in the mid-1960s through the early 1990s, Americans remain collectively traumatized by the experience. Perhaps budgetary pressures will eventually lead to a softening of American criminal justice policy, but right now, politicians at every level and in both major parties have little to lose by being tough on crime.
Second, that attitude has seeped into the judiciary as well, including Democratic appointees. The Lancaster opinion—authored by President Clinton’s appointee, Justice Ruth Bader Ginsburg—is striking in its matter-of-fact acceptance that AEDPA bars relief even for someone who may very well have been unconstitutionally convicted for conduct that was not criminal at the time in which he engaged in it. It is nearly impossible to imagine a similar opinion being written by any of the earlier generation of liberal Justices. They appeared to think that the constitutional right to habeas corpus extends to collateral review of state court convictions.
Third, and most speculatively, it is possible that the Court’s unanimous willingness to interpret the habeas rights of state prisoners narrowly arises out of the Bush/Obama detention policies. As I noted above, the core traditional function of habeas corpus was to challenge executive detention without trial. Yet for most of the last half-century, nearly all habeas cases in the federal courts were brought by prisoners who had already had a trial and appeal, but were using habeas as a vehicle for obtaining collateral review. During that period, the Justices may have come to equate habeas-as-collateral-review with habeas, full stop. If so, then at least the more liberal Justices would have understood new limits on the availability of habeas-as-collateral-review as putting limits on habeas itself—and they would have thus perceived such limits as posing a threat to core civil liberties, including the constitutional right to habeas itself.
However, since 9/11 and the use of the Guantanamo Bay Naval Base to detain captives, the Court has seen a series of cases in which habeas was used for its historic core purpose: to test executive detention without trial. In those cases, the Court rebuffed the Bush Administration’s most aggressive positions. Having done so, the Justices may believe that they have vindicated habeas, and thus, they may have less energy or inclination left to fight for habeas as a mechanism for collateral review of state convictions.
This last hypothesis is highly speculative and may be entirely mistaken as a causal account. But if it is even partly true, that would be a shame. Habeas as a collateral remedy can serve a valuable function in holding the state criminal justice systems accountable by providing a federal check on them. That is not exactly the same function that the writ of habeas corpus historically played, but it is important nonetheless.