Making Habeas Work

A Legal History

Eric M. Freedman

• Publisher: NYU Press
• Year: 2018
• ISBN:
  9781479858941
• Topic: Droit
• Subtopic: Histoire juridique

A reconsideration of the writ of habeas corpus casts new light on a range of current issues Habeas corpus, the storied Great Writ of Liberty, is a judicial order that requires government officials to produce a prisoner in court, persuade an independent judge of the correctness of their claimed factual and legal justifications for the individual’s imprisonment, or else release the captive. Frequently the officials resist being called to account. Much of the history of the rule of law, including the history being made today, has emerged from the resulting clashes. This book, heavily based on primary sources from the colonial and early national periods and significant original research in the New Hampshire State Archives, enriches our understanding of the past and draws lessons for the present. Using dozens of previously unknown examples, Professor Freedman shows how the writ of habeas corpus has been just one part of an intricate machinery for securing freedom under law, and explores the lessons this history holds for some of today’s most pressing problems including terrorism, the Guantanamo Bay detentions, immigration, Brexit, and domestic violence. Exploring landmark cases of the past - like that of John Peter Zenger - from new angles and expanding the definition of habeas corpus from a formal one to a functional one, Making Habeas Work brings to light the stories of many people previously overlooked (like the free black woman Zipporah, defendant in “the case of the headless baby”) because their cases did not bear the label “habeas corpus.” The resulting insights lead to forward-thinking recommendations for strengthening the rule of law to insure that it endures into the future.

Part I

Habeas Corpus as a Common Law Writ

In 2008, in Boumediene v. Bush,1 the US Supreme Court for the first time in American history invalidated an Act of Congress under the Suspension Clause.2 The Court ruled the Military Commissions Act of 2006 was unconstitutional because the proceedings it provided to alleged terrorists at Guantanamo Bay for challenging their detentions were not the equivalent of common law habeas corpus.3 The Court sent the case back to the District Court to conduct proceedings that were. But there had been little serious study of the common law writ4 since first federal habeas corpus statute came into effect in 1789.5

I took a fresh look at the historical materials and came to three conclusions.

1. 1. As a functional matter a “habeas corpus” proceeding is a legal action, however denominated, that challenges the lawfulness of a detention and requires the custodian to justify it to a court or else release the prisoner.6 That is the definition that needs to guide researchers today. To proceed formalistically, searching the archives to find cases in which the outcome was the issuance or non-issuance of a document bearing the label “habeas corpus,” as scholars have sometimes done, distorts the historical picture.
2. 2. On the other hand, taking a functional view yields valuable insights into how the legal system responded to claims of unjust imprisonments.
3. 3. Those insights have application today.

In support of these conclusions this part argues:

Chapter 1. In studying proceedings that are denominated “habeas corpus,” it is important to stay focused on what the judges did, rather than what they said. If they actually reviewed the facts or law said to justify a detention, they were effectively granting the writ regardless of the wording of whatever orders they may have issued.

Chapter 2. During the colonial and early national periods, a petitioner might ask a judge to review and terminate an allegedly unlawful confinement by seeking many writs other than habeas corpus, including certiorari, supersedeas, prohibition, trespass, and replevin—or even by filing a petition without naming a specific writ.

Chapter 3. For purposes of gaining insight into the Suspension Clause, those distinctions make no difference. Functionally speaking, all of them are “habeas corpus” cases, and legal advocates should treat them that way.

Regardless of the vehicle by which a litigant brought to the attention of a court the disturbing possibility that a person might be unjustifiably imprisoned, the judicial system responded with the same set of techniques to obviate the possibility. Resisting any impulse to create general rules of law, the judges focused on the facts at hand and sought practical means of resolving the clash between the parties in a way that was speedy and consistent with underlying values of the system as a whole.

As recent litigation surrounding Guantanamo Bay has illustrated, today’s lower court judges would do well to emulate that sense of urgency and learn from the lessons of judicial technique bequeathed by their common law forebears, who faced very similar issues.

1

Knowing Habeas Corpus When You See It

For Suspension Clause purposes, we should define “habeas corpus” as a proceeding in which an independent court conducts an inquiry and determines whether a jailer is entitled to hold a prisoner.1 All students exploring the field should keep their eyes firmly fixed on that landmark and resist being distracted by legalisms.

Some legalisms, to be discussed in the next chapter, relate to the name given to the lawsuit challenging the imprisonment (i.e., whether the action is called one for habeas corpus). The current topic, though, is legalisms that lead to a misunderstanding even of those actions that do bear the habeas corpus label.

“Perhaps the best known ‘rule’ concerning habeas corpus was that against controverting the return.”2 In other words, if the jailer responded to the writ ordering production of the prisoner with a document stating some reason that would if true constitute a valid basis for the detention, the court could not inquire into the truth of the reason. This “rule” obscures far more than it illuminates.

In fact, common law judges “routinely considered extrinsic evidence such as in-court testimony, third party affidavits, documents, and expert opinions to scrutinize the factual and legal basis for detention.”3 Employing a variety of procedural devices, they simply nullified the “rule.” For instance, after receiving an application for habeas corpus supported by extensive affidavits, the judges might not issue the writ (thereby triggering a return) but rather issue an order requiring the jailer to show cause why the writ should not issue (thereby triggering an answer to the order to show cause that would be fully litigated).4 Or, once the jailer had produced the prisoner in court but before formal filing of the return, the judges might take formal or informal testimony from anyone (including the prisoner and counsel) with knowledge of the circumstances.5

By the time of the early national period the lower federal courts commonly conducted evidentiary hearings in habeas cases to examine the substantive legality of detentions.6 This took place most frequently in the context of challenges to military enlistments, where the return to the writ would invariably be that the alleged soldier had regularly enlisted, and the court would conduct an evidentiary hearing to determine whether, for example, he had been drunk or underage at the time.7

To take a typical instance, on December 31, 1827, George Peters submitted a habeas corpus petition to the United States District Court for West Tennessee setting forth that he was being held by Captain Robert Sands, who claimed “that your petitioner has been enlisted in the US Army for five years.”8 But, “your petitioner most positively avers that if he has enlisted it was done at a time when he was wholly incapable of transacting business or understanding it by reason of intoxication.”

The court issued the writ as requested, and, having the parties before it, listened to full evidentiary presentations by both sides. Whereupon, it concluded, “that at the time the said Peters enlisted, he was not in a state of mind which would make his contracts binding—but the undersigned is satisfied at the same time that the conduct of Captain Sands was entirely honorable and correct as it appeared in evidence that a stranger would be unable to detect the alienation of the said Peters’ mind altho’ it might exist at the time of conversation.” Accordingly, the court ordered “that the said Peters be discharged from the Service of the United States, and that his enlistment be taken for nothing.”9

Of course, at the end of any inquiry judges might conclude that a custody was justified. In that case, the outcome would be an order denying the writ of habeas corpus. But to say, as writers sometimes do, that the petitioner had been held not to be entitled to habeas corpus is at best ambiguous and at worst misleading.10 By obtaining judicial review of the facts and law underlying the detention, the petitioner had actually obtained “habeas corpus without the writ.”11 Anyone who reads decided cases without understanding this is likely to misunderstand their import.

The failure to learn these lessons of history was one of the elements that led the US Court of Appeals for the Fourth Circuit to perform so poorly when in 2003 it considered a habeas corpus challenge by Yaser Hamdi, an American citizen, to his detention as an alleged enemy combatant. In dismissing Hamdi’s petition, the court, likely misreading a number of older English cases in the way just described, adopted a rule very similar to the long-discredited “rule against controverting the return.” The Court of Appeals wrote that the government was entitled to prevail once it presented an affidavit containing factual assertions that “would, if accurate, provide a legally valid basis for Hamdi’s detention.”12

Recognizing that the effect of such a rule would be to deprive Hamdi of precisely the independent judicial examination into the justification for his imprisonment that is the historical essence of habeas corpus, the Supreme Court reversed. The Court wrote, “It would turn our system of checks and balances on its head to suggest that a citizen could not make his way to court with a challenge to the factual basis for his detention by his Government, simply because the Executive opposes making available such a challenge.”13 Faced with the prospect of having to justify Hamdi’s detention before a judge, the government instead hastily released him.14

Conducting an independent investigation into whether a custodian may continue to confine someone and issuing a binding order of release if the custodian has not shown a factual and legal basis for doing so is a core function of an independent judiciary. That, in substance, is what “habeas corpus” means,15 as it has for some five hundred years.16 The most meaningful way to view the past, present, and future of the writ is within that framework.

2

Habeas Corpus With and Without the Writ

Some Illustrative Cases

To show what is lost by confining research into habeas corpus solely to cases bearing that name, this chapter presents a series of cases successfully challenging illegal detentions. Those in section A are labeled “habeas corpus” and those in section B are not. But the cases in section A differ from those in section B only formally, not functionally. The cases in each group not only display factual isomorphism but, as chapter 3 will describe, display common characteristics in judicial approach.

A. Formal Habeas Cases

i. An Unappreciated Constable

In 1714, Charles Banfild was an appointed constable for the town of Portsmouth, New Hampshire. One of his duties was to collect taxes from the townspeople and remit them to the Selectmen. But things did not go well.1

As Banfild explained to the New Hampshire Superior Court in mid-August of that year, he used his best endeavors to collect but the “people would not pay.” And as fast as he hauled the delinquents before the local Justices of the Peace (“J.P.’s”) for non-payment, just so fast did the J.P.’s discharge them. This process was interrupted only by his own imprisonment for non-payment of the taxes to the Selectmen, which he had been unable to end by posting bond so that he might return to his collection efforts.

Banfild complained that his imprisonment was not only most unjust but also manifestly illegal because:

1. 1. his incarceration was contrary to the provincial statute under which he had been appointed,2 inasmuch as he had sufficient assets to pay the taxes in dispute; and...