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95 Judicature 90 (2011-2012)
Untangling the Twists of Habeas Corpus

handle is hein.journals/judica95 and id is 90 raw text is: Books Untangling the twists of habeas corpus By Larry Yackle Habeas for the Twenty-First Century, by Nancy 1. King & Joseph L. Hoffmann. University of Chicago Press. 2011. 272 pages. $45.00 T ake it from me. The one job you don't want is sorting out federal habeas corpus. By all accounts, exist- ing arrangements are an unrelieved disaster. Yet now come Nancy King and Joseph Hoffmann with a valiant effort to set things in order. Their book describes habeas corpus as the writ currently stands, offers explana- tions of why and how we have come to this pass, and, most important, advances a definite plan of action for habeas in criminal cases-a way to fix what so desperately needs fixing. This is a good book, a valu- able book. It is informative, essen- tially accurate in its presentation of objective data, and scrupulously honest in its advocacy of controver- sial policy. King and Hoffmann undertake to be comprehensive. But that promise must be understood in context. A slim university press monograph has limits; readers who want a treatise on the law of habeas corpus should look elsewhere. Moreover, this book is a single con- tribution to an extensive academic literature and can be assessed only in comparison to other views regard- ing the writ and what to do about it. John Blume, Sheri Johnson, and Keir Weyble respond to King and Hoffmann, virtually point-by-point.1 King and Hoffmann begin with habeas corpus where they are fairly comfortable with the status quo: cases involving detention in the absence of criminal conviction. Illustrations cover a lot of ground- from petitions by persons subject to civil commitment as a danger to themselves or others (because of infectious disease, for example) to aliens in military detention at Guan- tanamo, ostensibly to prevent them from taking up arms against the United States. King and Hoffmann nonetheless discern a common theme-namely, that habeas corpus typically supplies a vehicle for judi- cial examination of detention as a stop-gap during crises when the ordi- nary balance of governance is upset. The historical pattern, according to King and Hoffmann, is that in time we fashion alternative mechanisms for ensuring appropriate judicial superintendence. There are excep- tions. So far at least, we have forged no substitute for the writ in Guan- tanamo preventive detention cases. Yet King and Hoffmann anticipate that an acceptable alternative will ultimately be found even there. King and Hoffmann are far from satisfied with the state of habeas corpus in cases involving deten- tion after criminal conviction. In part, they adopt the assessment that other critics offer: The Warren Court developed the lower federal courts' habeas jurisdiction to imple- ment its interpretations of the Bill of Rights in the 1960s when there was a demonstrable need for federal court attention to the enforcement of federal constitutional safeguards in state court. Today, so this argu- ment goes, that need has passed. In response to federal habeas super- vision of state criminal process, state authorities and state courts have become more willing and able to see that federal procedural requirements are met in their own precincts. King and Hoffmann add their own twists. By their account, the theme that habeas is properly an instrument for dealing with short- lived distortions carries over to cases in which convicts petition the federal courts for habeas relief from custody pursuant to criminal judg- ments in state court. Here, too, federal habeas should give way to effective substitutes. But that hasn't happened, and habeas continues without any justifying rationale. King and Hoffmann acknowledge the common understanding that habeas remains an important means by which federal courts enforce federal rights. But they critique con- ventional wisdom on two counts. First, most state convicts are ineli- gible to file federal petitions. Prison- ers must be in custody to do so, but most sentences are fairly short, and prisoners are released before they can exhaust state opportunities for airing federal claims and put them- selves in position to petition for the federal writ. The very state adju- dicative mechanisms that federal habeas helped to bring about 1. John H. Blume, Sheri Lynn Johnson, and Keir M. Weyble, In Defense of Non-Capital Habeas: A Response to Hoffmann and King, 96 CORNELL L. REV. 435 (2011). 90 JUDICATURE Volume 95, Number 2 September-October 2011

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