The Gutted Writ

The Gutted Writ:
On Habeas Corpus

Robert Perkinson
The Nation
January 10, 17, 2011


On a lazy afternoon in February 1961, Wilbert Rideau decided to rob a bank
in Lake Charles, Louisiana. Rideau, a smart but impulsive eighth-grade
dropout from a violent home, had counted on making a quick, clean getaway,
just like the ones he'd seen in the movies, but his plans unraveled during
the heist when a phone call to the bank revealed that the police were closing
in. Rideau took three hostages, commandeered a car and, as darkness fell,
got lost on the back roads outside town. At a bayou crossing the passengers
bolted, and Rideau opened fire. Two survived and vanished into the night,
but the third, a teller named Julia Ferguson, was wounded by the gunfire
and then stabbed to death by Rideau with a hunting knife. A 19-year-old
black man had killed a white woman. In no time, Rideau was under arrest.
Books reviewed

In the Place of Justice: A Story of Punishment and Deliverance
By Wilbert Rideau
Knopf, 384 pp, 2010

Habeas Corpus: From England to Empire
By Paul D. Halliday
Belknap Press of Harvard University, 512pp, 2010

Outside the jail, a mob formed. "Hang that nigger," a voice called out. But
the officers held their man, confident that justice would be swift and
severe. "It was a good little town back then," a deputy sheriff later
explained to a reporter. "Ever'body did their job. The prosecutors, the law
enforcement…. You didn't have to worry about lynching because they
lynched 'em for you."

The trial, as Rideau recalls in his gripping memoir In the Place of Justice,
was "merely a formality," played out by white attorneys before a white
judge and an all-white jury. "I was the only black in sight, a fly in a bowl of
milk," he writes. The place was Calcasieu Parish, at the height of the
backlash against the civil rights movement, when Louisiana lawmakers had
voted to close down the state's public schools rather than integrate them.
Rideau was guilty of terrible crimes–armed robbery, kidnapping and
homicide–but the district attorney stretched and suppressed evidence to
prove premeditation, a necessary condition for a capital conviction. Julia
Ferguson's stabbing wounds became an attempted beheading, an
embellishment later undermined by pathology photographs. A meandering
oral confession got replaced by a tidier version, written by an FBI agent,
that detailed plans to murder every witness. Physical evidence from the
crime scene disappeared. The verdict was certain: death.

When it reviewed the roughshod proceedings on appeal, the US Supreme
Court assailed Calcasieu Parish's "kangaroo court" and reversed the
conviction. But a second trial before another all-white jury in the same venue
returned the same verdict. At that point the defendant would have run out
of options were it not for an ancient legal instrument that dates back at least
to the sixteenth century, and indirectly to the Magna Carta: habeas corpus.
Literally an order to "have the body" of a detainee brought into court to
assess the legality of his or her confinement, the writ of habeas corpus has
long been celebrated in Anglo-American jurisprudence as "a fundamental
safeguard against unlawful custody" and "a critical check on the executive."
As the writ gained strength in the decades around England's Glorious
Revolution, it helped to vanquish absolutism and lay the groundwork for the
modern era's protections of individual rights. Architects of the early
American Republic regarded habeas corpus as so indispensable that they
enshrined it in the Constitution, before the Bill of Rights, and set an
exceedingly high bar to its suspension, only "when in cases of rebellion or
invasion the public safety may require it." Hailed by William Blackstone as
a "stable bulwark of our liberties," the writ has figured prominently, if
inconsistently, in protecting disfavored minorities and mitigating
repression throughout the common-law world. In the legendary Somersett
case of 1772, a habeas petition led to the abolition of slavery in England,
though not yet its colonies. In 2004 the Supreme Court ruled in Hamdi v.
that the Bush administration's indefinite detention of suspected
terrorists who are US citizens without judicial review was constitutionally
indefensible. Even during the "most challenging and uncertain moments,"
the majority held, "the Great Writ of habeas corpus" remains in force,
allowing citizens, aliens and even designated enemy combatants to challenge
involuntary confinement and demand "due process of law."

In Rideau's case, habeas corpus provided a second entry into federal court,
which ordered yet another trial. Louisiana then sought and won a third death
sentence, but the delays allowed Rideau to survive until 1972, when the
Supreme Court, in Furman v. Georgia, vacated every capital conviction in the
country. After Furman Rideau was resentenced to life imprisonment, and his
court-appointed attorneys bid him farewell, saying they had done everything
they could for him. Sent to Angola, a former slave plantation that by the
1970s was "the most violent prison in America," he was left to rot but
instead built an extraordinary career. He started reading, then writing, and
eventually became a respected, award-winning journalist from behind
Angola's walls. Life magazine called him "the most rehabilitated prisoner in
America," but partly because one of his former hostages lobbied hard for his
perpetual confinement, his repeated appeals for clemency went nowhere.

That is, until habeas corpus again came to his rescue. A literary scholar
named Linda LaBranche took an interest in his case and started poring over
old jury selection records. She found incontrovertible evidence of racial
discrimination in Rideau's trials, and through the flexible, open-ended
provisions then permitted in federal habeas practice, she was able to help
secure Rideau a fourth shot at justice in 2005. This time, ably represented by
a team of pro bono attorneys, Rideau was convicted of manslaughter rather
than premeditated murder. Having already been incarcerated for forty-four
years, a period twenty-three years longer than the maximum sentence for
manslaughter, Rideau went free. He now lives in Baton Rouge, where he has
settled down with LaBranche and a brood of cats. "I'm only here today
because of habeas corpus," he said in a recent interview. "It saved my life."

Rideau's commutation and ultimate release signal the enduring potency of
habeas corpus, but also its practical impotence. What jurists have long
called "the Great Writ of Liberty" did its work, but at an excruciating
pace. That Rideau's case unfolded during a period of relative vitality in
habeas jurisprudence makes his story all the more troubling. Since the
1990s, lawmakers have increasingly circumscribed the writ, imposing rigid
time limits and erecting formidable barriers between state and federal
courts. In today's legal climate, a defendant like Rideau would have almost
no chance of returning to freedom or even escaping execution. Habeas is
becoming "an illusory writ," says George Kendall, one of Rideau's lawyers
and a habeas and death penalty expert. In the war on crime, the war on
terror and the new war against undocumented immigration, the Great Writ
is being gutted.

Paul Halliday's sweeping, scrupulously researched Habeas Corpus: From
England to Empire
examines the capacities and contradictions of this
remarkable legal device. A historian at the University of Virginia and an
occasional contributor to amicus briefs in noteworthy habeas cases, Halliday
dismisses conventional paeans to the writ. Focusing less on landmark
decisions than on thousands of quotidian cases from the sixteenth to the
eighteenth century, recorded on parchment and bound with leather thongs,
he pieces together an ambivalent story with unexpected origins. Rather than
heralding habeas corpus as a "palladium of liberty," he shows how, over the
course of centuries, habeas has extended state power as well as constricted
it, facilitated empire as well as regulated its reach, and how, in periods
of crisis and demagoguery, princes and parliamentarians have muffled the
"sighs of prisoners" despite the venerable writ's promise to hear them.

In early modern England, the judiciary was not a separate branch of
government but an extension of the sovereign's law, Halliday explains. Writs
of habeas corpus, accordingly, functioned less to safeguard individual
liberty–still an embryonic concept–than to regulate the conduct of jailers.
Faced with a polyglot legal landscape in which myriad entities, from
ecclesiastical courts to justices of the peace, had been granted the franchise
of imprisonment, powerful jurists, especially on King's Bench, the common
law court upon which the monarch theoretically sat, used habeas corpus
to review the decisions of lesser magistrates in order to ensure that
his majesty's subjects were lawfully detained. In this way, Halliday argues,
enterprising judges close to the crown made themselves into a superior court
and "put themselves at the heart of the state."

Acting in the name of the sovereign and asserting the authority to "monitor
the work of all other jurisdictions," King's Bench (Queen's Bench when the
monarch was a woman) deployed the writ in an extraordinary array of cases,
reshaping it in the process. Impressed soldiers, asylum inmates, slaves and
prisoners of war sought release through habeas proceedings, sometimes
successfully. Long before the development of modern family law, women
called on the writ to escape abusive husbands, though they had to convince
the court that a man's violence exceeded "the lawful government of his
wife." Forged in common law rather than by statute, writs of habeas corpus,
in the hands of determined judges, could reach almost any detainee, held
under any circumstances, located anywhere under British control.

In the turmoil of the seventeenth century, the judiciary went further. If habeas
began as a "writ of the prerogative by which the king demands account for
his subject," Halliday writes, the justices of King's Bench increasingly
claimed the powers of sovereign prerogative "for their own use, thereby
making themselves the sun that lit the heavens." As the crown was weakened,
judges asserted their independence, with startling results. In the wake of
revolution in the late 1680s–"a period of rampant fear," with war raging in
Ireland and an invasion from Catholic France looming–King's Bench
reviewed the records of 147 detainees charged with treason and other
"wrongs against the state" and ordered "bailed or discharged 80 percent," at
a time when the very survival of the government hung in the balance. What
started as a means of consolidating power had become a check on the

This was the golden age of habeas corpus, Halliday contends. Although
Whiggish histories have depicted the Great Writ as marching ever forward,
spreading freedom as it goes, Halliday shows that by the late eighteenth
century, when Enlightenment revolutions were breaking out on both sides of
the Atlantic, habeas corpus was in retreat. The advancing force was empire.
While in one sense the centralizing authority exercised through habeas
review standardized and thus facilitated the imperial reach of British law,
the writ's promise to apply the law uniformly inevitably faltered before the
inequalities and injustices of colonialism. Habeas corpus "traveled the
globe," Halliday observes, but "suspension followed, like a shadow."

During the American Revolution, Parliament suspended the writ and for
the first time made distinctions between detainees charged with committing
offenses at home and abroad, with the result that "hundreds of American
sailors" captured at sea were denied habeas relief and held indefinitely
"not as POWs, but as traitors or pirates." In South Asia, habeas corpus
arrived with the East India Company, but Halliday shows how statutory
limitations on habeas–a topic too often ignored in the literature, he claims–
"put Indians beyond the bounds of subjecthood" and empowered colonial
governors to define "criminal tribes" and imprison or deport whole groups
without trial. In response to the Mau Mau rebellion of the 1950s, hundreds
of thousands of Kenyans, including Barack Obama's paternal grandfather,
were rounded up, tortured or placed in concentration camps without judicial
review. Habeas corpus cast no light of liberty there.

Halliday focuses mainly on sixteenth- and seventeenth-century England, but
his attention to the perennial disappointments of the writ and its invidious
intersections with empire make for fascinating reading in the twenty-first-
century United States. Although habeas corpus is embedded in the
Constitution and has been suspended by Congress only once, during a case
of genuine rebellion in 1863, it faced epic challenges in the wake of
September 11, when the Bush administration asserted unprecedented powers
to unilaterally declare people "enemy combatants" and detain them at will,
indefinitely and without independent review of any kind. Halliday's book
suggests that the White House had ample, if selective and legally dubious,
precedent for its aggressive posture. In response to "detestable conspiracies,"
both real and imagined, various British governments had pioneered all
manner of habeas circumventions: removing prisoners to other countries,
holding them on ships and building special prison camps on remote
islands, where, "surrounded by waves," detainees were kept "beyond law's
gaze." When challenged by the courts, administrators had sought and often
won legislation to strip noncitizens of legal protections, indemnify jailers
"who had done the ugly work" or simply suspend habeas corpus altogether–
an increasingly common practice as the British Empire, and resistance to it,
grew. In defending rendition, enhanced interrogation and indefinite
detention at Guantánamo, legal theorists in the Bush administration thus
borrowed from repressive tactics developed in colonial Ireland, Jamaica and
New Zealand–conquered places that allowed the British sun never to set
but where the law was too often put to sleep.

Halliday posits that "the history of habeas corpus traces an ongoing tension
between the logic of detention and the persistent judge." By 2004 it seemed
the judge might again be gaining the upper hand. In three cases decided in
June of that year, as images of prisoner degradation at Abu Ghraib spread
around the world, the Supreme Court condemned the Bush administration's
"unchecked system of detention" and breathed new life into habeas corpus.
Narrow majorities ruled on a number of key issues: citizens and aliens alike
retain their habeas rights, even if they are declared enemy combatants; the
executive's war powers do not insulate it from judicial review; and writs of
habeas corpus have the power to reach any jailer anywhere who is subject to
US law, even at Guantánamo Bay, which is officially Cuban territory but has
been controlled by the United States since the Spanish-American War.
Rejecting the Bush administration's most expansive arguments, the justices
noted that the founders, having suffered British despotism, regarded
"unlimited power" as "especially hazardous to freemen." As Justice
O'Connor famously commented, "A state of war is not a blank check for the

The Court's rulings marked another milestone in the history of the Great
Writ, yet the aftermath bears out Halliday's clear-eyed approach. Following
the advice of Justice Scalia, who accused his fellow justices of "judicial
adventurism of the worst sort" (ironically, just the sort of adventurism
that created habeas and sustained it over four centuries), Congress in 2005
stripped Guantánamo detainees of their habeas rights, reinforcing Halliday's
contention that legislators can be as hostile to civil liberties as
executives. In two subsequent cases, most categorically in Boumediene v.
(2008), the Court struck back, again rejecting President Bush's
determination to "govern without legal constraint" and Congress's
willingness to let him. The majority ruled that under the Constitution
lawmakers have no right to suspend the writ selectively and that military
tribunals, as set up by the Pentagon, provide no "adequate substitute" for
impartial, adversarial judicial review. Sweeping in scope, the decisions
nonetheless left the vast majority of detainees in legal limbo: still incarcerated,
still awaiting their day in court. Almost a decade after its creation–despite
constitutional censure and promises by President Obama to shut it down–
the prison camp that Amnesty International has called "the gulag of
our times" remains mostly insulated from the rule of law. On the page,
habeas corpus may have triumphed over the Bush administration's war of
fear, but on the ground the "logic of detention" continues to unfold.

This disjuncture between promise and practice is equally pronounced, if
less discussed, in other areas of modern US law. In the realm of immigration
enforcement, where federal detention has expanded most rapidly in recent
years, similar tensions have developed between the judiciary and the
political branches, and with similar results. In 2001 the Supreme Court held
in INS v. St. Cyr that immigration detainees have habeas rights and that
deportation hearings managed by the Justice Department, an executive
agency, cannot be walled off from judicial review, as Clinton-era statutes
tried to do. In 2005 Congress responded with the Real ID Act, which in
addition to setting up the rudiments of a controversial national ID card
system, included scarcely noticed provisions to paralyze the writ of habeas
corpus in immigration cases without actually killing it. By imposing
thirty-day federal filing deadlines and limiting the purview of the judiciary
to questions of constitutional law rather than the factual record of individual
cases, the statute preserved habeas in name but in effect made it unavailable
to thousands of detainees each year. "The government has so chipped
away at habeas in immigration cases as to make it an almost meaningless
right," says Lee Gelernt, an ACLU attorney who is building a case to
challenge the new law. He adds that an executive-only approach to
immigration enforcement has continued under the Obama administration,
which detained 380,000 individuals on immigration violations in 2009,
almost none of whom are provided access to counsel or even an independent
court hearing, much less habeas review.

In conventional criminal law, the United States is unique in using habeas
corpus primarily as a postconviction remedy. Invoking the writ successfully
has never been easy, as the case of Wilbert Rideau makes clear.
Nevertheless, postconviction habeas developed into an important alternative
to direct appeals and as a mechanism of equity relief, especially in death
penalty and civil rights cases. During the divisive crime debates of the
1990s, however, Congress passed the Antiterrorism and Effective Death
Penalty Act (AEDPA), which put habeas petitions beyond the reach of all but
the most capably represented and egregiously wronged criminal detainees.
Extending legalistic restrictions already imposed by the Rehnquist Court,
the law requires prisoners to exhaust all state remedies before turning to
federal court, limits the ability of federal judges to question the
decisions of trial courts and imposes various administrative burdens on
petitioners, including strict deadlines for initial filings–all of which add
up to insurmountable barriers for most inmates, who tend to be indigent,
poorly educated and unrepresented by counsel. "AEDPA has been awful for
criminal defendants," says Vanita Gupta, an ACLU attorney who under more
forgiving state rules famously helped overturn a host of wrongful drug
convictions in Tulia, Texas. "Its onerous, lawyerly demands and blanket
restrictions have created a morass of litigation and severely curtailed the
reach of the Great Writ." Even as America's prison population has swollen to
an unparalleled size, a key conduit for release has thus been shut off, in
effect rendering the country's first civil right an inaccessible right. As
during the repressive ascendance of the British Empire, lawmakers in the
United States have "bound the judge and muffled the prisoner's sighs."

Halliday's history of setbacks and shortcomings is indeed discomfiting.
"Beginning with royal power" and ending with "detention of people on a
scale that defies judiciousness," his book suggests that the "idea of habeas
corpus"–that no person shall be detained except by due process of law–
"has been more powerful outside of courtrooms than inside them." Yet his
book is not without hope. Halliday shows how innovative and persistent
judges turned an instrument of the king's prerogative into a "writ of majestic,
even equitable, sweep" and managed, in some cases at least, to defend
it against "a legislative onslaught on liberties of every kind." In thwarting
the Bush administration's absolutist leanings, the Supreme Court has
recently shown glimmerings of that same independence, but the results
remain unclear. In the twenty-first century, habeas corpus can be as vital for
the protection of individual liberties as it was in the seventeenth, but
courageous judges–precisely the sort excoriated by Scalia–will have to
make it so.

Robert Perkinson teaches at the University of Hawaii at Manoa and is the
author of Texas Tough: The Rise of America’s Prison Empire.
Copyright © 2010 The Nation

Posted in Criminal Justice