Wednesday, December 9, 2009
Nancy J. King (Vanderbilt University School of Law) and Joseph L. Hoffmann (Indiana University-Bloomington, Maurer School of Law) have posted Habeas Corpus for the Twenty-First Century, Chapter One on SSRN. Here is the abstract:
This is the introductory chapter of a forthcoming book, presently under contract with the University of Chicago Press, about the future of the federal writ of habeas corpus. The book provides a compact, accessible, yet comprehensive history and analysis of habeas corpus in all of its diverse applications, an analysis that is based on the latest empirical research of habeas litigation in federal courts, and that includes specific recommendations for reform. By examining how habeas has been applied to review pretrial detention, civil commitment, immigration and military detention, capital and non-capital state convictions and sentences, federal criminal judgments, and administrative decisions by prison and parole officials, the book exposes striking patterns that are not easily seen when the writ is viewed only in a single context or at a single moment in time. Two principles emerge to guide future modifications of the habeas remedy: Habeas must remain a flexible remedy so that it will be available, whenever it is needed, to provide judicial review that can rectify imbalances in government power during times of crisis; and habeas must be exercised prudently as a tool of last resort, used only so long as is absolutely necessary, until alternative review mechanisms take shape. This introductory chapter contrasts the remarkable story of the writ’s liberation of a Guantanamo detainee with the unremarkable saga of habeas litigation by a typical state prisoner, and previews some of the book’s specific proposals for reform.