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37 Case W. Res. L. Rev. 748 (1986-1987)
Thinking about Habeas Corpus

handle is hein.journals/cwrlrv37 and id is 760 raw text is: THINKING ABOUT HABEAS CORPUS Erwin Chemerinsky* Hailed as the great writ of liberty, the writ of habeas corpus protects the Ameri- can citizenry from arbitrary and wrongful governmental imprisonment. The scope of the protection provided by the writ, however, has never been finally settled during its almost 200 year existence. This is the result of afailure on the part of those analyzing its scope to recognize the complexity of the issues involved and to confront the true issues that underlie its application. In this Article, Professor Chemerinsky discusses what he considers to be the four primary considerations of habeas issues; federalism, separation ofpowers, the purposes of the criminal justice system, and the nature ofthe litigation involved. In order to promote continuing dialogue on the habeas doctrine, he provides his views on how these issues should be analyzed in the habeas context. INTRODUCTION BLACKSTONE REFERRED TO the writ of habeas corpus as the most celebrated writ in the English law.' Mindful of its importance in English jurisprudence, the Framers of the United States Constitution explicitly provided that The Privilege of the Writ of Habeas Corpus shall not be suspended unless when in Cases of Rebellion or Invasion the public Safety may require it.' Con- gress, in adopting the first Judiciary Act, authorized federal courts to grant writs of habeas corpus in all cases where any person may be restrained of his or her liberty in violation of the Constitution, or of any treaty or law of the United States.3 Although initially fed- eral courts could only grant habeas corpus to prisoners in federal custody, after the Civil War Congress allowed state prisoners to ob- tain habeas corpus if they were held in custody in violation of the * Associate Professor, University of Southern California Law Center; B.S., North- western (1975); J.D., Harvard (1978). I want to thank Jeffrey Golden and Mel Ilomin for their excellent research assistance. 1. 3 BLACKSTONE COMMENTARIES 129 (1791). For an excellent history of habeas corpus, see W. DUKER, A CONSTITUTIONAL HISTORY OF HABEAS CORPUS (1980). See also Rosenn, The Great Writ-A Reflection of Societal Change, 44 OHIO ST. L.J. 337 (1983). The focus of this paper is solely on habeas corpus in federal courts and on the most familiar form of the habeas writ, traditionally titled, habeas corpus ad subjiciendum. R. SOKOL, FEDERAL HABEAS CORPUS 35 (2d ed. 1969). 2. U.S. CONST. art. I, § 9, cl. 2. 3. Judiciary Act of 1789, ch. 20, 1 Stat. 73 (1789).

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