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July 25, 2023
"The New Negative Habeas Equity"
The title of this post is the title of this new piece authored by Lee Kovarsky now available via SSRN. Here is its abstract:
A federal statute restricts the habeas corpus remedy, but do federal judges also have equitable discretion to deny relief to unlawfully detained prisoners? Over the last several terms, the Supreme Court has begun to embrace this novel, ambitious view of habeas law. Although the Court has long cited what I call “negative” equity as a source of authority to devise its own limits on habeas relief, it had never — until recently — suggested that lower courts have free-floating discretion to deny relief to which prisoners are otherwise entitled.
This Essay, which consists of three parts, considers and refutes the “new negative equity.” In Part I, I set forth the older version of negative equity and then describe the recent departure therefrom. In Part II, I explain why the new negative equity doesn’t follow from any text-centered approach to statutory interpretation — relying substantially on context and drawing heavily from a statutory history that decisional law and academic discourse have thus far neglected. In Part III, I focus on the most troubling register of the new negative habeas equity, which involves a rule against habeas relief for those who are not “factually innocent.”
Equitable power to refuse relief might be consistent with “comity, finality, and federalism,” as it were, but orphaned policy preferences are not law. Under the text-centered approach to law endorsed by most who favor habeas restrictions, such a practice is impossible to justify. Although no interpreter can be perfectly certain of statutory meaning, the new negative equity is both inconsistent with habeas history and a least-plausible reading of the modern statute.
July 25, 2023 at 11:57 AM | Permalink
Comments
Unlawfully detained. What does that mean? Finality is a thing. So any reference to "unlawful detainment" has to say when finality is operable and when it is not.
Posted by: federalist | Jul 25, 2023 4:19:05 PM
And hasn't federal habeas been unavailable for illegal searches forever?
Posted by: federalist | Jul 25, 2023 4:23:05 PM
Habeas law is full of equitable rules designed to enforce the statutory language when the courts believe enforcement of that language is appropriate and equitable exceptions to those rules when enforcement of that language is not appropriate. For example, Section 2254 requires state inmates to present their claim to state court if a state court is available before raising it in federal court. But there are three levels of equitable rules enforcing that language. At the first level, the courts have decided that if state procedural rules (e.g., time limits) mean that any claim filed in state court would be automatically denied, then the state courts are not available. At the second level, to prevent inmates from circumventing this rule to avoid having to overcome deferential review of any state court decision on the merits, the federal courts have created a "default" rule which is not in 2254 to say that claims not presented in state court if a state court had been available to consider a properly raised claim will not be considered on federal habeas review. At the third level, the federal courts have stated that if it's not the petitioner's fault that they have failed to raise the claim, then federal courts can consider the claim ("cause and prejudice") even though 2254 contains no exceptions to the requirement that claims be presented in state court.
The traditional view of unlawfully detained was that the person holding the prisoner needed to show some authorization to hold the prisoner -- a warrant, a commitment order, or a sentence and judgment. If the document authorizing the detention was facially valid (i.e. signed by a person authorized to sign it, naming the detainee, and had not expired), that was, in 99.9% of the cases, the end of the inquiry. In a very tiny fraction of case, habeas courts would hold that the purported reason for the detention was not a valid reason (e.g., holding that could not find jurors guilty of contempt for returning a not guilty verdict), but that was clearly an exceptional circumstance. 2254 and 2255 both cover a much larger concept of unlawfully detained, but they are not unlimited and finality is implicit in the time limits and other restrictions contained in the habeas chapter.
Posted by: tmm | Jul 26, 2023 9:51:38 AM