Habeas Corpus

Federal habeas corpus for state prisoners is presently in a precarious position. For its critics, federal postconviction review of state criminal convictions is an unjustifiable intrusion into state criminal justice systems. Such review subjects state court decisions to review in the lower federal courts (as opposed to the U.S. Supreme Court) often years after trial. To this extent, current federal habeas corpus departs from the traditional norm of hierarchical appeals to a final court in a timely manner. Moreover, federal habeas review as a practical matter has become a vehicle for extensive federal intervention in state death penalty practices.

For its defenders, federal habeas provides the lone meaningful opportunity for federal courts to have the last say regarding the content of federal law. Recognizing that discretionary Supreme Court review is not a practical means of supervising state court compliance with federal constitutional norms, federal habeas serves as an essential surrogate to review by the Court.

As the Court and Congress impose new and substantial procedural obstacles to federal habeas review, there is less reason to believe that federal habeas will provide much incentive for state courts, in the famous words of Justice Harlan, "to toe the constitutional mark" (Mackey v. United States, 401 U.S. 667 (1971)). The increased proceduralization will also take federal habeas far from its origins as a broad means of inquiring into the lawfulness of custody. In his ringing dissent decrying the Court's refusal to grant the writ in the face of a mob-dominated trial, Justice Holmes insisted that "habeas corpus cuts through all forms and goes to the very tissue of the structure" and "comes in from the outside, not in subordination to the proceedings, and although every form may have been preserved opens the inquiry whether they have been more than an empty shell" (Frank v. Mangum, 237 U.S. 309 (1915)). The future of federal habeas corpus will ultimately turn on whether federal enforcement of federal law is regarded as a desirable norm or an unnecessary and unjustified departure from state control over the federal rights of state prisoners.