Kissing The Great Writ Good-Bye

They still refer to it occasionally as "The Great Writ" and "the bulwark of liberty."  They may remind us that it was at the heart of what happened at Runnymeade in 1215 when the barons made King John sign Magna Carta.  And from time to time they'll quote the second sentence of Article I, Section 9 of the Constitution, the so-called "Suspension Clause."

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.

The thing is, when they do those things today, at least when Congress does them, or the President, or the Five Who Decide on the Supreme Court, they're probably giggling, snickering, and elbowing each other in the ribs.  Enjoying the joke.

Because, really, they've done their best to write it out of the law while continuing to pay it lip service.  The idea, the fundamental idea, is that habeas corpus is the last gasp protection against being unlawfully detained.  When you're being held - pre-trial, post-trial, without trial - when you're facing a death sentence, and it's happened in violation of your rights under the federal constitution, you're supposed to have a remedy through habeas.

Except, you know, then the state courts would have to actually enforce the Constitution.  Or else the federal courts would just unconvict people right and left.  And the President and Homeland Security and DOJ and whoallever (how's that for a word?) would have to give up detaining people forever just 'cause they wanna.

And we can't have that.  That would be a recognition that we really have and obey the rule of law.  Which is dangerous.  And according to a couple of seemingly respectable law professors, Joseph Hoffman and Nancy King in a New York Times op-ed a couple of weeks ago, and a new book, it's damnably inefficient.  I mean, all that hard work for the federal courts which just don't grant relief anyhow.

Actually, their point is that habeas has worked.  See, we had to have it because the states didn't enforce federal constitutional rights.  Now, the states admit that they're supposed to enforce federal constitutional rights, so all is good (except in the rare cases of innocent people and folks on death row).

Forget about the innocent.  Habeas has never been available to solve their problem, so if we're going to stop use of the writ except for innocence cases, we're going to stop use of the writ altogether.  Their calculus shows that about 5,600 prisoners will get habeas relief.  The number who'll get it because of innocence is zero.  If we're after efficiency, dropping the innocent from the pool would seem to be the first step.*

  The real silliness in their argument is in the assumption that because states courts acknowledge that they're supposed to enforce federal constitutional rights, there's no need for the federal courts to do it.  

It's rather like saying that since I know that when my house is on fire I should call call the fire department, there's no actual need for the fire department to come and put out the fire.  After all, I acknowledge that it should be done.  Hell, even the fire department acknowledges they ought to come.  What more is necessary?  

Oh, yeah.  Someone to put out the damn fire.

Because, see, the state courts may acknowledge away, but they don't bother actually to enforce those rights.

And now there's AEDPA, the Anti-terrorism and Effective Death Penalty Act of 1996, which says, in essence, that it's OK for states not to enforce federal constitutional rights as long as their failure wasn't too "unreasonable."  Specifically, under AEDPA, a federal court may grant habeas relief to a state prisoner only if the prisoner has first successfully navigated numerous procedural hurdles, often without the assistance of counsel, and without a single misstep and then can satisfy an absurdly high burden.  Here's the relevant language from the statute.

(d) An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim—

(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or

(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.

So the state court doesn't have to be wrong.  It has to be grossly wrong.  Federal courts are to be highly deferential to those state court judges.  Ron Kuby put it this way in a letter to the Times following the Hoffman-King op-ed

This is a virtually impossible standard to meet and argues for expanding, not limiting, federal review.

And yet the Supreme Court, or at least the Five Who Decide, have been doing their best to tighten those habeas screws lest someone actually manage to get relief.

All of which brings me to Doody v. Ryan.  Here's the first paragraph of the majority opinion by Judge Rawlinson.

This case emerged from a horrendous crime — the murder of nine individuals, including six monks, inside a Buddhist temple. The ensuing investigation ensnared Petitioner Jonathan Doody, a seventeen-year old high school student. Although Doody eventually confessed to participating in the nine murders, he challenged his confession, asserting that the Miranda advisements he was given were inadequate and that his confession was involuntary. In our opinion reported at 596 F.3d 620 (9th Cir. 2010) (en banc), we agreed on both counts. Specifically, we concluded that the advisement provided to Doody, which consumed twelve pages of transcript and completely obfuscated the core precepts of Miranda, was inadequate. We also held that nearly thirteen hours of relentless overnight questioning of a sleep-deprived teenager by a tag team of officers overbore the will of that teen, rendering his confession involuntary. See id. at 622-23. We concluded that the state court rulings to the contrary were an unreasonable determination of the facts and an unreasonable application of governing Supreme Court precedent. See id. at 636, 653. The United States Supreme Court granted certiorari, vacated our judgment and remanded this case to us for further consideration in light of  Florida v. Powell, 130 S. Ct. 1195 (2010). See Ryan v. Doody, 131 S.Ct. 456 (Oct. 12, 2010) (Mem.). Having reviewed the facts and circumstances of this case in light of Powell, we reaffirm our prior rulings.

That's strong language, but if that's all there were, I wouldn't be writing this.

See, here's the problem.  The dissent thinks that what the state court decided (Miranda  warnings were just fine, confession not coerced) may have been wrong, but it wasn't grossly enough wrong to matter.  After all, it's OK for Doody's rights to have been violated as long as the state didn't think they were.

Again, if that were all, I still wouldn't be writing this.

It's not all, because Judge Rawlinson, and in a concurring opinion Chief Judge Kozinski, laid out some important principles.  First Rawlinson:

Our colleagues in dissent chastise us for reaching these conclusions, accusing the majority of  “once more pay[ing] mere lip service to AEDPA and then proceed[ing] as though it does not exist.”  Dissenting Opinion, p. 5860. The dissent would prefer that we simply parrot the findings made during the state court proceedings and call it a day. However, if we succumb to the temptation to abdicate our responsibility on habeas review, we might as well get ourselves a big, fat rubber stamp, pucker up, and kiss The Great Writ good-bye.

Now Kozinski:

Not for the first or last time, we’re asked to consider what it means for an opinion of a state court to be “unreasonable” under 28 U.S.C. § 2254(d). I write separately because I believe that deference is neither a blindfold nor a bandana.

. . .
Even under AEDPA, however, it’s not possible to bend the record far enough to sustain the state court’s opinion, if habeas corpus is to  “stand[ ] as a safeguard against imprisonment of those held in violation of the law.” Richter, 130 S. Ct. at 780. The dissent is correct that the Supreme Court has repeatedly overturned this court for insufficient deference. Dissent at 5852-53. But the Court has also said that AEDPA’s “standard is demanding but not insatiable” and that  “ ‘deference does not by definition preclude relief.’ ” Miller-El v.  Dretke, 545 U.S. 231, 240 (2005) (alteration omitted) (quoting Miller-El v. Cockrell, 537 U.S. 322, 340 (2003)).
. . .
We defer when state courts reasonably adjudicate claims of federal right, even if we think they’re wrong. Richter, 131 S. Ct. at 786. But where, as here, a state court doesn’t act reasonably, deference comes to an end. After all, we retain “authority to issue the writ in cases where there is no possibility fairminded jurists could disagree that the state court’s decision conflicts with” Supreme Court precedent.  Id. Yes, the standard is a “difficult” one to meet, id., but difficult doesn’t mean impossible. When police take a butcher knife to Miranda, a decision so “embedded in routine police practice to the point where the warnings have become part of our national culture,” a federal court can’t sit idly by. Dickerson, 530 U.S. at 443.

The three opinions in Doody collectively run 116 pages.  They're filled with interesting tidbits and disagreements.  If you have a passion for understanding just when a confession can be said (by judges) to have been coerced, you might want to read it all.  If you care about how "clarification" of Miranda warnings can turn into a warning that is, in Kozinski's words, "affirmatively misleading."  Those things are the substance of the opinion and the court does or doesn't get them right.

What I've quoted, though, is its heart.  The court absolutely got that right, though there's a fair chance it will be reversed again by SCOTUS.

Still, if the writ is to mean anything, if habeas is to retain any significance, it must have some applicability.  Congress wants it to have none.  The Five Who Decide are doing their best to give Congress what it wants.

Judges Rawlinson and Kozinski are fighting, here, a rearguard action.  Their case, and our rights, are seriously endangered by the fantasy that habeas serves no real purpose.  Because it does.

The point of the writ is to hold the government to its proof and to insist that the rules - and with them the rights of the people - actually matter.

It's about the Rule of Law beating out the Law of Rule.

Or we really might as well all just pucker up.

---------------

*The death row thing is different.  The percentage of those on death row who get habeas relief is actually fairly high.  Hoffman and King don't try to account for that, but the reasons are fairly clear.  First, their cases are probably taken a bit more seriously by the federal courts than those of people who are just incarcerated.  Second, and far more importantly, most of those who get into federal court are represented by counsel.  Habeas is all procedural and substantive quagmires.  Lawyers, and especially lawyers with resources, make a real difference.

h/t to Anna and Kathy and Hilary at Dicta who reminded me that I wanted to write about Doody.

I'll Show You Mine If You'll Show Me Yours

He's 6.  She's 5.

They were, as the phrase goes, "playing doctor."

Oh, My God!  Call the cops.

Now, the good news is that, at least according to Sandy Cullen writing at Madison.com, a 6-year-old cannot be criminally charged in Wisconsin, not even as a juvenile.  The bad news is that the wily Wisconsin prosecutors, recognizing a sexual predator when they see one, have figured out a way to drag the boy and his parents into court.

Instead, prosecutors have included the allegations in a petition seeking protection or services for the boy. Such petitions are typically used by parents or authorities to identify children under 10 who need services to change inappropriate behavior.
If a judge finds the boy committed a delinquent act, the court can order that he and his family receive services such as counseling or other treatment.

So, he can't be charged with a delinquent act because he's too young.  But if he committed one, he can be "treated."  Cool how that works.

He won't be charged with sexual assault, but he'll be hauled into court to answer for it.

And then . . . .

Do I need to say that 5 and 6 year old boys and girls have been checking each other out forever?  Not for sexual gratification.  But out of curiosity.  

You probably did it.

So, gasp, did your parents.

It was not a precursor to rape.  Nobody was psychologically harmed.

Until the parents got involved.

And the cops.

And the courts.

The problem is one we've seen before and that I've written about before.  (See here, for instance.) We're terrified of the wrong things.  And we think that the courts and the cops can keep us safe from our fears.  But they can't.

If we're determined to see a monster behind every post, if we're convinced that all things which do not provide security are threatening, then we lose sight of the real risks.

Six or seven years ago, I was giving a talk about the Patriot Act and how it really did almost nothing to make us safer but went a long way toward invading our privacy and limiting our freedom.  During the question period after, a man stood up and asked,

If you take away the Patriot Act, what can you do to make me feel safer when I fly?

The question was silly, of course.  I can't take away the Patriot Act (would that I had such power).  And, really, there's probably nothing I could have done (since reason and actual evidence weren't working) to make him feel safer.  Frankly, I couldn't do anything actually to make him safer when he flew, either.   (Again, my limited powers.)  But sensible plans, realistic determinations of risk, there really are things that make sense.

And there are things that don't.  When we respond with visceral fears, we make the wrong choice.

There's probably nothing wrong that 5 year old girl or the 6 year old boy.

But Oh, my God.

We can call the cops and change that.

Another Murder Part II

Earlier today, I wrote about yesterday's killing of a man who most people in this country probably figure deserved to die regardless of whether they think we should have killed him or that his death will make a difference.  I didn't name him then, and won't now because it doesn't matter just who he is.  Death, ultimately, is death.

Killing is killing.

I meant to close with a passage lifted from John Donne's Meditation XVII (1624) but, frankly, I got distracted and forgot.  I thought about adding the passage as an update, but that didn't feel right.

So here, by themselves, because every death is personal and individual and different than every other, because the good and the bad alike die, because killing is killing despite the fact that killings and men and the facts and circumstances are never equivalent, and because really, the words are true.

No man is an island, entire of itself; every man is a piece of the continent, a part of the main. If a clod be washed away by the sea, Europe is the less, as well as if a promontory were, as well as if a manor of thy friend's or of thine own were: any man's death diminishes me, because I am involved in mankind, and therefore never send to know for whom the bells tolls; it tolls for thee.

Another Murder

It's been a week and a half since Good Friday, the oddly named day (yes, I get it; it's still odd) when believers remember what must be the most famous execution in history.

Yesterday, there was another.

The former, according to believers, led to resurrection, eternal life, hope, rebirth, renewal, all that good stuff. His followers go to church and pray.

The latter, we are told, requires special high alert for reprisals. His followers will now glorify him as a martyr.

And people gathered in Times Square and at the site of the World Trade Center and I suppose at the Pentagon and cheered.  While the Mets-Phillies game went into extra innings, fans at Citizens Bank Park in Philadelphia stood and chanted

USA! USA!

No, I am not suggesting an equivalence.

When Ted Bundy was killed, Time reported that

some 200 bloodthirsty revelers gathered outside the penitentiary in Starke, Fla., for a ghoulish celebration. They lit sparklers, cheered and waved signs reading BURN, BUNDY, BURN and ROAST IN PEACE.

No equivalence there, either.

And it won't be equivalent when, Texas murders Cary Kerr tomorrow night or Ohio murders Danny Bedford two weeks after that.  Nor for any of the others we have murdered and will murder in the name of, for the sanctity of, the state.

Nor, of course, is there equivalence between what our victims are said to have done and what we did to them.

There's no equivalence because, first, our motives are pure.  We're good and they're bad.  We kill for the right reasons.  And we can't make mistakes.  Or we catch them all if we start to.  Never any collateral damage.  No suffering for those who don't deserve it.  (What, you think it isn't your fault that someone you cared for killed?  Damn right you should suffer.)  No friendly fire.

All of which is silly. What we are is human.  Even the least human of us.

Yet if we have that in common, still there's also no equivalence because every death, every murder is personal, individual.

Maybe the murder of Jesus changed things.  Believers will say so.  But then, they'll also say he wasn't human or was something more than human.  Killing a God, that's different, somehow.

Maybe.

Or maybe it's all the same.

And yet deeply personal.

Just ask those who mourn.

And then ask these questions:

Are we better today than we were yesterday?  Are we safer? Are we freer?

Are you still urged to keep an eye out for abandoned packages?  Has TSA declared an end to Scope and Grope?  Are they emptying Gitmo?  Or providing a real trial for Khalid Shekih Mohammed?

Are the troops coming home?  Are the dead resurrected, the injured healed?  Is peace at hand?  Is the budget balanced?  Have we cured cancer?

We killed a man (and others, by the way).

Let us rejoice mourn.

If not because he deserved our tears, then because we do.