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The Anachronistic Attack on Habeas Corpus/Direct Review Parity

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The Anachronistic Attack on Habeas Corpus/Direct Review Parity Columbia Law School Scholarship Archive Faculty Scholarship Faculty Publications 1992 Apocalypse Next Time?: The Anachronistic Attack on Habeas Corpus/Direct Review Parity James S. Liebman Columbia Law School, [email protected] Follow this and additional works at: https://scholarship.law.columbia.edu/faculty_scholarship Part of the Law Commons Recommended Citation James S. Liebman, Apocalypse Next Time?: The Anachronistic Attack on Habeas Corpus/Direct Review Parity, 92 COLUM. L. REV 1997 (1992). Available at: https://scholarship.law.columbia.edu/faculty_scholarship/117 This Article is brought to you for free and open access by the Faculty Publications at Scholarship Archive. It has been accepted for inclusion in Faculty Scholarship by an authorized administrator of Scholarship Archive. For more information, please contact [email protected]. APOCALYPSE NEXT TIME?: THE ANACHRONISTIC ATTACK ON HABEAS CORPUS/DIRECT REVIEW PARITY James S. Liebman* TABLE OF CONTENTS I. PARITY AND DISPARITY: A COMPARISON OF Two MODES OF FEDERAL COURT REVIEW OF STATE COURT DETERMINATIONS OF FEDERAL LAW ......................................... 1999 II. WRONG AND WRIGHT: THE OPPOSING VIEWS OF JUSTICE THOMAS AND JUSTICES O'CONNOR AND KENNEDY ........... 2010 A. The Questions Presented and Prescribed.................... 2010 B. A Critical Analysis ofJustice Thomas' Arguments Against De Novo Habeas Corpus Review ............................ 2012 C. Victory on Points: A Less CriticalAnalysis of the O'Connor and Kennedy Opinions .................................. 2033 D. Is to Ought: The Search for an Affirmative Case ............ 2036 III. Two THESES AND Two TESTS OF THE HISTORICAL SCOPE OF HABEAS CORPUS REVIEW IN THE UNITED STATES ............ 2041 A. Two Theses ........................................... 2041 B. Two Tests ............................................. 2048 IV. A NEW HISTORY OF HABEAS CORPUS IN STATUTORY AND FEDERAL JURISDICTIONAL CONTEXT ......................... 2055 A. A New Thesis ......................................... 2055 B. Federal Question Writs of Error and Habeas Corpus Review Under the 1789 Judiciary Act ............................ 2057 C. The Antebellum Removal and Habeas Corpus Acts .......... 2062 D. The Reconstruction Era Accretions to the Federal Courts' Writ of Error, Removal, and Habeas CorpusJurisdiction ......... 2063 E. Post-ReconstructionLimitations on Removal and Habeas Corpus Review ........................................ 2065 F. Late Nineteenth Century and Early Twentieth Century Revisions of the Supreme Court's Writ of ErrorJurisdiction ... 2072 G. Moore to Brown: Criminal Procedure Revolution and Direct Review Devolution ..................................... 2081 H. The Brown "Revolution" The Impact of Certiorarification Realized .............................................. 2083 I. CongressionalAffirmation: The 1966 Amendments ......... 2084 J. Summary ............................................. 2091 V. CONCLUSION: THE WRIGHT STUFF VERSUS THE RIGHT STUFF 2094 * Professor of Law, Columbia University. Dedication, of course, goes to Henry, who came to Janet and me about the same time this Article did. 1997 1998 COLUMBIA L4 W REVIEW [Vol. 92:1997 Today, a district court's habeas corpus review of the constitutional- ity of a state criminal conviction and the Supreme Court's direct review of the same question are nearly identical. Last Term, in Wright v. West,I an otherwise mundane criminal procedure case, the Supreme Court re- wrote the question presented to ask whether the parity between federal habeas corpus and direct appellate review should be destroyed. The Court proposed abandoning in habeas corpus an important trait shared by the two modes of review-de novo consideration of legal and mixed legal-factual questions. 2 To those who value meaningful habeas corpus review,3 the Court's order augured Apocalypse Now. The seeming momentousness of the Court's action was enhanced by its timing. Just three weeks before, the Senate had come within a few votes of ending a Republican filibuster and passing a habeas corpus reform bill, previously adopted by the House, that rejected a Bush Administration proposal to replace de novo review with deferential review of state court determinations of law.4 The Court's sua sponte order requesting briefing on a question presented by neither the parties nor the case thus arrogated to the Court an issue that the political branches otherwise might have, but have not since, settled. Despite ominous signals from the Court that pervasive change was afoot, the Court unanimously dispatched Wright on the mundane crimi- nal procedure issue initially presented by the parties. But the views expressed injustice Thomas' plurality opinion (joined by ChiefJustice Rehnquist and Justice Scalia) and the Court's nearly simultaneous grants of certiorari in two cases raising similar issues may well portend Apocalypse Next Time.5 That Justice O'Connor (joined by Justices Blackmun and Stevens) responded to Justice Thomas' singular brief in support of deferential review with a point-by-point refutation-sup- ported on one of those points by Justice Kennedy's separate opinion- only enhances the sense that battle lines are forming for an impending habeas corpus Armageddon. It is against that possibility that this Arti- cle is deployed. 1. 112 S. Ct. 2482 (1992). 2. See Wright v. West, 112 S. Ct. 672 (1991) (mem.) (granting cert. to review West v. Wright, 931 F.2d 262 (4th Cir. 1991)). 3. Myself included. I was co-counsel on the Brief Amici Curiae of Benjamin R. Civiletti, Nicholas deB. Katzenbach, Edward H. Levi, and Elliot L. Richardson, in Support of the Respondent, Wright v. West, 112 S. Ct. 2482 (1992) (No. 91-542) [hereinafter Civiletti Amicus Brief]. 4. See Brief Amicus Curiae of Joseph Biden & Don Edwards at 14-16, Wright v. West, 112 S. Ct. 2482 (1992) (No. 91-542) [hereinafter Biden/Edwards Amicus Brief] (describing these events). 5. See Brecht v. Abrahamson, 112 S. Ct. 2937 (1992) (mem.) (No. 91-7358) (granting certiorari to review 944 F.2d 1363 (7th Cir. 1991)); Withrow v. Williams, 112 S. Ct. 1664 (1992) (mem.) (No. 91-1030) (granting certiorari to review Williams v. Withrow, 944 F.2d 284 (6th Cir. 1991)). 1992] HABEAS CORPUS 1999 Part I demonstrates the existing parity between habeas corpus re- view in the district courts and direct review in the Supreme Court. Part II analyzes the opinions in Wright, revealing among other things that a proper determination of the Great Writ's future requires an accurate understanding of its past. In response to that discovery, Part III ana- lyzes Professor Bator's flawed tour deforce of 1963,6 which has greatly influenced but also greatly distorted most contemporary views of the writ's history. Part IV offers a new habeas corpus chronology. My con- clusions are twofold. First, although Justices O'Connor and Kennedy, taking the negative side, win the debate on Justice Thomas' proposal in Wright to slash habeas corpus review, their failure to offer an affirmative case leaves the writ vulnerable. Second, a new, more rounded and ac- curate, history of the writ provides the affirmative case for a habeas corpus/direct appeal parity that extends to de novo review of legal and mixed legal-factual questions. I. PARITY AND DISPARITY: A COMPARISON OF Two MODES OF FEDERAL COURT REVIEW OF STATE COURT DETERMINATIONS OF FEDERAL LAW The police arrest Smith for armed robbery. After reading him his Miranda rights and securing his permission to ask questions, two groups of officers, each relieved by the other at intervals, interrogate Smith for ten nighttime and early morning hours. Smith's requests for water and coffee are honored; those for cigarettes, sleep, and a chance to call a friend are not. The interrogation takes place entirely in words; rubber hoses and bright lights are not in evidence. For hours, Smith insists that he had no part in the robbery under investigation. At length, the officers reveal their belief, supported by unspecified evi- dence, that Smith and Jones previously have committed several other armed robberies and that things will go hard for both Smith and Jones in all the cases if Smith does not cooperate in the case at hand. At Smith's suggestion, the officers promise to suspend proceedings against Smith and Jones on the other robberies if Smith confesses to the robbery at hand. Smith confesses. After holding an evidentiary hearing on Smith's motion to sup- press, the trial court finds the facts set out above and concludes that, promises notwithstanding, the confession was voluntary and admissi- ble. Smith's subsequent conviction rests on the confession. The state supreme court affirms, ruling that a promise not to prosecute the de- fendant and an associate for other crimes does not taint an otherwise voluntary confession. Smith asks the United States Supreme Court for a writ of certiorari to review the state supreme court decision, alleging, as the certiorari 6. See Paul M. Bator, Finality in Criminal Law and Federal Habeas Corpus for State Prisoners, 76 Harv. L. Rev. 441 (1963). 2000 COLUMBIA LAW REVIEW [Vol. 92:1997 statute requires, (i) that he has been deprived of a "right... under the constitution, treaties or statutes of... the United States' 7 and (ii) that he has exhausted his state remedies with regard to the federal claim in the sense that he is asking the Court to review a ' judgment[] ... ren- dered by the highest court of a State in which a decision [on the claim] could be had" as of right.8 At any other
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