Who Killed Habeas Corpus?

Who Killed Habeas Corpus?

President Bill Clinton giving his 1995 State of the Union Address with Vice President Al Gore and Speaker of the House Newt Gingrich sitting behind him (Library of Congress)

On November 4, 1995, Leandro Andrade walked into a K-Mart in Ontario, California, and attempted to shoplift five children’s videotapes. He was caught by a security guard and promptly arrested. Two weeks later, he walked into another K-Mart in nearby Montclair and tried to steal four more videotapes. Again, he was caught and arrested on the spot. This time, he was tried and convicted in a California state court of two counts of petty theft with a prior conviction. His sentence for stealing $153 worth of VHS tapes? Fifty years in prison.

The staggering sentence was largely a result of California’s three-strikes law: Andrade had been in and out of prison since the early 1980s, including on charges of (nonviolent) burglary, and the shoplifting incidents were the final straw. Prosecuted as felonies, each demanded a minimum sentence of twenty-five years under the California law, adopted just the year before.

Andrade’s appeals in the California courts were unsuccessful, so he filed a petition for a writ of habeas corpus in federal court challenging the constitutionality of his sentence. Ultimately, the case went to the Supreme Court, and on March 5, 2003, the Court ruled against him. Andrade remains in prison today, with no possibility of parole until he’s eighty-seven years old.

Andrade’s case offers a window onto what may well be the most tragic development of the modern legal era: the destruction of habeas corpus as an effective remedy for individuals who are imprisoned as a result of a violation of their constitutional rights by a state court. Once known as the Great Writ of Liberty, habeas corpus has been so extensively diminished that it is no longer a protection against unlawful imprisonment but rather an empty procedure that enables and may actually encourage state courts to disregard constitutional rights.

The writ of habeas corpus came to the United States by way of English common law and is explicitly recognized in the Constitution. In the Judiciary Act of 1789, Congress conferred habeas jurisdiction on the newly created federal courts, thereby enabling prisoners to challenge the legality of their custody in such courts. Two great events in American history established the reach and power of the writ. The first was Reconstruction. Among the important constitutional amendments and statutes passed by the Reconstruction Congress was the Habeas Corpus Act of 1867 in which the benefit of the writ was extended to formerly enslaved people and others convicted in state courts. Thus, for the first time, federal courts were authorized to monitor state criminal proceedings to ensure that defendants’ constitutional rights were respected. The second was a series of decisions by the Warren Court in the 1960s extending the procedural protections in the Bill of Rights to criminal defendants in state courts. Many law-enforcement officials resisted these decisions—including, for example, the ...