The Cost of Denying Access to Habeas Corpus Review

What happens when one person is wholly responsible for another’s fate? In Florida, Paul Howell will be executed by the state without having had his case reviewed in full by the federal court because one of his prior attorneys missed a filing deadline. This means that Mr. Howell will be denied habeas corpus, what was once referred to as “the great writ”. The purpose of the great writ is to right wrongs -  not by serving the state - but by protecting individual liberties from the reckless actions of the government.

The writ of habeas corpus is the fundamental instrument for safeguarding individual freedom against arbitrary and lawless state action. Its pre-eminent role is recognized by the admonition in the Constitution that: ‘The Privilege of the Writ of Habeas Corpus shall not be suspended." U.S.Const., Art. I, s 9, cl. 2. The scope and flexibility of the writ-its capacity to reach all manner of illegal detention-its ability to cut through barriers of form and procedural mazes-have always been emphasized and jealously guarded by courts and lawmakers. The very nature of the writ demands that it be administered with the initiative and flexibility essential to insure that miscarriages of justice within its reach are surfaced and corrected.

Harris v. Nelson, 394 U.S. 286, 291 (1969).

Indeed, wholesale denial of access to the federal courts constitutes not just a moral wrong, but a constitutional violation.  The First Amendment prohibits Congress from restricting the right to petition the government for redress, the Fourteenth Amendment imposes federal law on state governments, and the Supreme Court is the final arbiter of the meaning of the Constitution. U.S. Const. Art. III. Preventing habeas petitions for issues of first impression exceeds Congress’ authority.    

Despite all of this, including the Supreme Court declaration in Harris v. Nelson, courts have declined valid argument under the Suspension Clause of the Constitution. U.S. Const. Art.1 § 9 [2].  i.e.,  Evans v. Thompson, 518 F.3d 1 (1st Cir. 2008).  At the time the Suspension Clause was written, the writ of habeas corpus referred to pretrial detention and only to federal prisoners. See, Incorporating the Suspension Clause: Is There a Constitutional Right to Federal Habeas Corpus for State Prisoners?, Steiker, J.,  92 Mich. L.Rev. 862, 864 n.9, 865 n.17 (1994).  However, the Judiciary Act of 1867 established habeas corpus as a post-conviction remedy and applied this right to state court litigants. Judiciary Act, ch. 28, § 1, 14 Stat. 385 (1867). By that time, inferior courts had existed for over 75 years and the notion of habeas corpus had already expanded to post-conviction rights. Under this concept, then, the right of access to federal courts is one on a par with the Reconstructionist Amendments - the Judiciary Act of 1867 predates and foretells part of the purpose of those Amendments and of the Civil War itself.

The right to petition the government inherent in the First Amendment includes the right to petition the federal courts.  Given the concept of separation of powers, designed to protect against tyranny, the First Amendment prohibits Congress from limiting habeas corpus review of state court decisions impacting federal issues such that amounts to a prohibition of the right to petition the court.  Infringing upon the right of the people to petition amounts to a legislative interference with the judiciary’s exercise of its authority over the meaning of the Constitution, exceeding Congress' authority. Marbury v.Madison, 1 Cranch 137, 5 U.S. 137, 2 L.Ed. 60 (1803).   Congress' enactment of, and the Court's acquiescence to, the AEDPA imposing strict rules upon the eligibility of cases to obtain habeas review, barring new arguments from reaching the Supreme Court challenges the purpose of the Great Writ and raises a Ninth Amendment application to the right to judicial review. 

Of course, habeas petitions are not the only avenue available to most state court litigants.  On direct review and for a limited period of time, they enjoy the right to petition the Supreme Court for certiorari. Certiorari permits state court litigants the right of federal review of state court errors related to federal law without the constraints of the AEDPA. 

But both direct certiorari and habeas review contain time bars, hence the situation which mires Mr. Howell.  Given the imposition of federal law upon the states via protections of individual liberties inherent in the  Fourteenth Amendment, the filing limitations start to look ominously unconstitutional.  The seriousness of Mr. Howell's current circumstances illuminates the meaning of the term "deadline": one lawyer missed a date for filing and therefore the federal courts can and will deny review of the great writ resulting in the state taking Mr. Howell's life. 

The Judiciary Act of 1867 seemed to encourage broad federal review of state cases.  Born of the Civil War, this legislation was designed to ensure fairness to those whom society had denied basic humanity.  Denying access to habeas corpus challenges the purpose for which so many surrendered their lives and fortunes in the Civil War.  Early on, the Union learned that the Confederates were no easy target.  In the battles fought in Manassas, early jubilation of Union forces met with reinforced Confederate troops for bruising losses and a signal that the war would be long one.  In those initiating battles, the 90 day recruits became soldiers, some remaining in for the duration.  At some point, folks had to determine what it was they supported and what they were fighting - and dying - to preserve. 

As it turns out, in this sesquicentennial year of both the Emancipation Proclamation prompted by the slim victory at Antietam and the Gettysburg Address spoken on the bloodstained fields of Pennsylvania, the Union for which men sacrificed their lives was far greater than the one they went into battle to save.  The people of the Union, North and South, would harbor anger and resentment, the choices would not always be perfect, but the nation, the Union, the ideals of American democracy would emerge from the war with far greater resolve to enhance the second sentence of the Declaration of Independence.  It is that Union that ensured the right of access to the federal courts - that Union which sought to advance decency and dignity for all of its inhabitants.

So now, one hundred and fifty years later, denying access to the courts based upon one lawyer's missed deadline - indeed executing a man who has arguments left to make - seems an outrageous disparagement of these brave soldiers and the courageous Congressional leaders who insisted on making this nation better than the one that went to war against itself in the first place.  One hundred and fifty years after the Civil War, court battles on access to review and voting rights, indeed, seem to denigrate the memory of the men who gave their lives so that future generations could live together in peace.

What does happen when one person is responsible for another person's fate?  Tragedy.  The more than 700,000 Americans who gave their lives to the cause of the Civil War did not fight to ensure that one missed date would end in the death of a fellow American without judicial review.  They fought to protect the United States from dissolution on the Union side and they fought for their homes and families on the Confederate side.  The Union prevailed not just for the North's sake, but for the sake of the entire Union.  Lincoln's Second Inaugural Address and General Grant's grace at Appomattox Courthouse demonstrated empathy for the individuals who fought despite the disagreement of their position.  The United States was reborn into a more perfect union - not perfect, just a bit moreso, due to the struggles of the battles one hundred and fifty years ago.  

We continue, in fits and starts, to create and develop a more perfect union, establish justice and ensure domestic tranquility.  That progress is punctuated, however, with such skirmishes as denying access to the courts and the ballot box, two of the promises guaranteed to all Americans after the Civil War.  We honor our dead by keeping their promises to the living.  Otherwise, they all died in vain.  While that historical lens may appear to magnify the cost of denying Mr. Howell access to habeas review; it accurately reflects that when we ask people to fight and die for American values, we had better know what they are and the sacrifices the rest of us will make to ensure their perpetuity.  One lawyer missed one filing date; with the history of the great writ in the mirror, it is un-American to let another man's life act as payment for that error.