Federal habeas corpus evolved out of a basic problem with state courts, which is that state and local prosecutions are too susceptible to mob rule, empty “tough on crime” rhetoric, and a fair amount of racism and class prejudice. The original purpose of the “Great Writ” was to allow a court to review the legality of a detention. So, for instance, when President Lincoln detained a bunch of suspected confederate-sympathizers without charges during the Civil War, they could file petitions for habeas corpus, and thus, the issue before the Court was whether Lincoln had validly suspended the writ.
But the modern form of habeas was developed by two cases, Frank v. Magnum and Brown v. Allen, in which defendants suffered shocking deprivations of due process (a violation of federal constitutional rights) in state trials. The problem that habeas was enlisted to solve was this- in theory, if the state courts deny you due process, you can eventually petition the U.S. Supreme Court for relief. However, the Supreme Court is not particularly interested in mere error correction; it prefers to take cases that shape the law. Federal habeas corpus gets around this problem by allowing federal trial courts to hear the petitions and remedy the constitutional violations.
This was a significant advance. However, it came with problems. For one thing, people serving long prison sentences often have nothing to do. Accordingly, plenty of people with no real grounds for habeas relief started filing petition after petition. You might as well; there’s always the chance that you hit the lottery! For another thing, death penalty lawyers, who are very committed, admirable people trying to save people’s lives, started filing repetitive, desperate petitions right before the execution date. Again, trying to hit the lottery.
And there was also the suspicion that federal habeas might let state courts off the hook. I.e., elected state court judges and prosecutors might figure they don’t have to make an unpopular ruling to release a prisoner, because the federal courts (with life-tenured judges) could always take the heat later.
Accordingly, in the 1990’s, there were calls in Congress to reform habeas. Unfortunately, in the tough on crime environment of that era, Bill Clinton and Newt Gingrich developed an extremely punitive approach. The more enlightened proposals coupled habeas with funding for better public defenders; the theory was that many of the errors that habeas proceedings sought to correct might never be made if defendants got better representation in the first instance. But that isn’t what happened. Instead, federal habeas was basically cut off for many prisoners.
The way this worked was that the Antiterrorism and Effective Death Penalty Act required a United States Supreme Court case, on point, before a habeas petition could be granted. This meant, in practice, that the same problem that existed before habeas was expanded was re-created- the Supreme Court doesn’t take enough cases, doesn’t decide enough legal issues, and defendants’ whose particular right had not been specifically adjudicated in a U.S. Supreme Court case were screwed. (Part of the backstory of this was Congress was trying to punish the Ninth Circuit Court of Appeals, perceived to make liberal rulings in criminal procedure cases, by making their rulings not “count” in habeas proceedings.)
AEDPA was not all bad. It tied “successive” or late petitions to credible claims of actual innocence, which is a good standard, because it gives courts a way to easily dismiss the repeated pro se petitions of prisoners with nothing else to do. That’s a reasonable approach. But even when you have a claim that you are innocent, it can’t be “freestanding” under an outrageous U.S. Supreme Court case called Herrera v. Collins; in order to get habeas relief, you have to show both that you are innocent and that a constitutional right was violated under clearly established Supreme Court authority. Congress therefore essentially authorized the detention of innocent people in AEDPA.
We need to change this. If your rights are violated in your state court trial, you should get a new trial. It should not matter if the law is “clearly established”, a standard that was imported from qualified immunity, a different context. (I don’t have a high opinion of qualified immunity, but at least the theory behind it is plausible- that a cop should obey legal rules she knows about but maybe should not be forced to pay damages if the rule was not established yet. This has no application to habeas corpus.) And if you are innocent, that should be a freestanding ground for habeas corpus relief.
The portions of AEDPA that restrict second/successive or late habeas petitions can remain, with a proviso that if a defendant comes forward with credible evidence of actual innocence, that claim should be heard.
Innocent people, and people who have suffered serious violations of their constitutional rights, sit in prison right now because Congress overly restricted habeas corpus, and Supreme Court review of their direct appeals and executive clemency are not effective remedies for them. We need to reinvigorate federal habeas.