abstract. The law of habeas corpus has been in disarray for a long time. The Supreme Court’s recent decisions in Shinn v. Ramirez and Jones v. Hendrix have significantly narrowed the scope of the habeas power and chipped away at avenues for relief for defendants. This Essay applies the seminal work of Professors Paul Halliday and Lee Kovarsky to argue that habeas corpus must be completely reconceived in light of its historical role as an avenue for judicial power to push back against arbitrary executive decision-making. The Essay argues for a surprising source for this revival: Justice Scalia’s late-career criminal due-process jurisprudence. In his attack on the Federal Sentencing Guidelines, Scalia exerted searching judicial review to vindicate core structural rights of criminal defendants—fighting back against a Sentencing Guidelines regime that took discretion away from judges in a realm that had historically afforded them wide latitude. Similarly, habeas law should refocus around vindicating judges’ historic habeas power to challenge arbitrary executive incarceration practices. This is an important, specified component of Article III “judicial power,” and one connected with a specific privilege guaranteed in the U.S. Constitution: the “Privilege of the Writ of Habeas Corpus.”

Introduction

Habeas corpus, the centuries-old writ by which a judge may order the body of a detained person brought before the court, has come on hard times in the American system. When the Supreme Court decided Shinn v. Ramirez in May 2022, the academic prognosis was dire: the Court’s latest habeas corpus case had made it, yet again, more difficult for state-court defendants to have their defaulted constitutional claims heard in federal court.1 Previously, Martinez v. Ryan had created a narrow window for petitioners to raise claims of ineffective assistance at both the trial and postconviction levels by holding evidentiary hearings to gather new evidence that did not exist in the state record.2 Ramirez, however, appeared to shut this window.3 The Court blocked federal courts from considering ineffective-assistance evidence that was not already presented to the state court or available in records from state-court proceedings.4 Because ineffective-assistance claims are among the most frequently raised by habeas petitioners today, this narrowing dealt a significant blow to would-be petitioners.5

As Professor Leah Litman has suggested, the Ramirez decision is perplexing.6 Both defendants in the case had colorable claims, and, by closing what appeared to be a sensibly narrow exception for doubly-inadequate-counsel claims in states without other avenues for appeal, Ramirez further upset a part of habeas jurisprudence that was already teetering on the brink of “chaos.”7 The Court did so in the name of federalism and finality, taking the view that permitting the lower courts to hold evidentiary hearings on these claims invited “[s]erial relitigation” and encouraged prisoners to “sandbag” state courts by “sav[ing] claims for federal habeas proceedings.”8 As the Harvard Law Review put it in its dramatic assessment of the case, “‘[S]tates’ rights’ predominate over civil rights once more.”9 For now, at least, federalism and finality have won. But practically, the Ramirez Court ensured that federal habeas review now cannot reach many of the cases where it is most needed—cases in which a hypothesized “harm” to the federal system outweighs the need to correct the injustices perpetrated by doubly inadequate counsel and limited state records.10 The question, then, is how we should reconceptualize federal habeas corpus to correct this injustice.

This Essay argues that decisions like Ramirez and other recent Supreme Court habeas cases like Jones v. Hendrix11 rest on fundamental misconceptions of habeas corpus’s role and when it should be deployed by courts. Ramirez might make sense if habeas were a rarefied final line of review for individual-rights violations, a kind of bonus appeal when state process seems inadequate. After all, state process, and especially state fact-finding, must end somewhere.12 This frame reflects an effort to balance states’ rights and finality on the one hand against the possibility of punishing “actual innocence”—the ultimate individual-rights violation—on the other.13 But, as scholars have argued in response to Professor Paul D. Halliday’s magisterial 2010 history of the habeas writ, and as the landmark decision Boumediene v. Bush acknowledged, habeas corpus was historically understood as a “judicial power” to review the carceral actions of the political branches rather than to vindicate individual rights against government misconduct.14 In other words, habeas was received as a matter of judicial review over and against incarcerating authorities—in more modern parlance, an important feature of our checks-and-balances, separation-of-powers-based system. As the Boumediene Court put it, “[T]he writ of habeas corpus is itself an indispensable mechanism for monitoring the separation of powers. The test for determining the scope of the provision must not be subject to manipulation by those whose power it is designed to restrain”—that is, by “the political branches.”15

This historical understanding of habeas is also consistent with its still-undertheorized role in our constitutional scheme in protecting and defining due-process rights. The power of federal judges “to decide how much process underlying a federal custody determination proves that it is lawful” is a “privilege” that is expressly guaranteed by the Constitution and therefore one that not even Congress can abrogate.16 And—although this is a more controversial belief—the power of federal courts to review the detention of state prisoners may be incorporated against the states in the Fourteenth Amendment’s Due Process Clause and guaranteed as a “feature of national citizenship” under the Privileges and Immunities Clause.17 These accounts are contested, but their basic framing is now beyond serious debate.

In this Essay, I attempt to define more clearly just what the “habeas power” is for. Building on Professor Halliday’s work, this Essay argues that unlike the federalism or innocence-based rationales underlying Ramirez, the habeas power is meant to serve as a meaningful check on executive power. The archaic language of “writ” and “privilege” in the Constitution is more than mere window dressing: on habeas review, judges wrest the bodies of the incarcerated into almost an alternative legal system, one marked by what Professor Halliday calls the “equitable intervention into law’s normal operation made legal by their being directed ‘for the public good,’”18 or what Justice Holmes memorably called “com[ing] in from the outside.”19 The point of habeas, therefore, is not so much to provide an extra layer of factual review or a second chance at appeal, but to offer a special layer of legitimacy review that lies uniquely within the Article III “judicial power” of the courts.20 In conjunction with the Privileges and Immunities Clause itself, the Constitution’s protection of the “Privilege of the Writ of Habeas Corpus” preserves as if in amber a common-law-informed view of subjecthood that is defined less by property-like, carefully delineated individual rights than by the more flexible, quasi-medieval language of privilege, subjecthood, and subjugation.21 It is fair to say that this view has not been fully integrated into the United States’s federal system of criminal law—even though, along with the jury trial, the availability of the habeas writ is one of the few bedrock guarantees made to anyone accused of a crime there. Reconceptualizing habeas law to conform to these principles will therefore go a long way in correcting the “chaos” of habeas law.

Part I of this Essay argues, consistent with recent scholarship, that habeas corpus is better understood as a matter of judicial power than as a final line of review for individual-rights violations: it is where the judicial branch may correct fundamental errors in the criminal process, counterbalancing the powers of the political branches in this sphere. Part II finds justification for this power in history, identifying how the habeas power was traditionally focused on executive arbitrariness that denied defendants fundamental due-process rights, beyond just issues of jurisdiction. Part III then argues that Justice Scalia’s attack on the mandatory Federal Sentencing Guidelines provides a useful model for thinking about how habeas corpus law, now often rightly criticized as wasteful and redundant, could be streamlined and reinvigorated to reimplement this historic function. Part IV considers the Texas capital-murder regime as an example of how this reformed habeas corpus doctrine could work in practice. The Essay then concludes.

I. the habeas power

There is a tension in modern habeas law: a focus on factual innocence and federalism has reduced courts’ historic power to a rough-and-tumble balancing of interests. As Ramirez illustrates, this framing often results in a habeas review that is narrowly focused on purely procedural issues, like procedural default and exhaustion, while tolerating violations of fundamental due-process protections. This Part seeks to illustrate these issues and to identify a way beyond this impasse. Applying the work of Professors Halliday and Lee Kovarsky on the history and tradition of habeas corpus, and invoking Justice Scalia’s sensitivity to habeas’s constitutional role, this Part argues that habeas corpus review should instead be oriented toward correcting executive infringements on core due-process protections. This does not necessarily require more habeas review or more wins for petitioners. Whatever the outcome for the Ramirez petitioners might have been under this framework, it would at least have permitted federal courts to ask the question at the heart of both of their claims: were fundamental due-process violations concealed in the silence of the state record?

The facts underlying Ramirez show why the seemingly narrow, procedural issues raised in the case matter for how we conceive of federal habeas corpus overall. Ramirez was a consolidation of two capital cases, both alleging ineffective assistance of counsel based on a failure to investigate.22 The first case, Jones v. Shinn, involved an innocence claim based on evidence the petitioner’s trial counsel had failed to discover.23 The second case, Ramirez v. Ryan, turned on the claim that trial counsel had been negligent for failing to investigate potentially mitigating evidence.24 In both cases, state-appointed postconviction counsel failed to raise an ineffective-assistance-of-trial-counsel claim during initial postconviction review.25 These claims of ineffective assistance and the evidence supporting them therefore did not appear in the state record—either during the trial or on appeal.

The Ramirez Court held that the absence of such claims in the record precludes a federal court from ever hearing the evidence needed to support them.26 Paradoxically, the absence of the claim in the state record demonstrates that there was ineffective assistance of counsel at both the trial and postconviction stage. But without a hearing, there is no obvious way to develop the claim. Nonetheless, placing emphasis on the Antiterrorism and Effective Death Penalty Act’s (AEDPA) prior judicial interpretations “that state-court judgments [should be] accorded the finality and respect necessary to preserve the integrity of legal proceedings within our system of federalism,” Justice Thomas wrote for the Court that lower courts cannot gather the additional evidence required to elaborate the claim.27

In addition to demonstrating how federalism concerns can short-circuit federal claims, Jones speaks directly to longstanding debates in habeas scholarship about the role of the habeas petition. Influential twentieth-century commentators, such as Judge Henry J. Friendly and Professor William J. Stuntz, have argued that while noninnocence habeas claims clog the courts and risk frustrating state independence—two concerns noted by the Ramirez majority28—outright innocence claims like Jones’s are at the core of what constitutional criminal law should protect and, accordingly, what the federal writ of habeas corpus should be used for.29 More recently, Professors Joseph L. Hoffman and Nancy J. King have advanced a similar argument on purely pragmatic grounds: they contend that since the vast majority of federal habeas petitions by state prisoners are unsuccessful, the substantial resources spent on habeas litigation would be better spent on securing adequate counsel in the first place.30 By providing better funding to overworked and underpaid public-defender offices and focusing fewer resources on noninnocence habeas claims, trial and state postconviction counsel would more adequately defend their clients, and fewer issues would arise.31

Ramirez presents a related but more intricate federalism problem: the question of just how grossly negligent state counsel’s mitigation assistance must be before federal courts can step in, given AEDPA’s facially strict requirements to justify additional evidentiary hearings.32 Perhaps more so than the innocence claim in Jones, the claim in Ramirez directly implicates the questions of federalism and comity foregrounded in Justice Thomas’s majority opinion, showing how decisive federalism concerns have become for applying AEDPA.33 Regardless, the Court’s ruling in Ramirez now blocks both petitioners’ claims, because their claims require evidence that they cannot obtain.34 Cases like the ones consolidated in Ramirez show how balancing federalism and finality interests against the possibility of a potential rights violation often requires placing a finger on the scale in one direction: a little more fact-checking might give the petitioners a case on their rights claims; but then again, it might not.35 Rather than follow the Friendly and Stuntz line to distinguish the “actual innocence” claim from the claim regarding mitigation, the Ramirez Court strictly and consistently applies the rule that evidentiary hearings generally may not be held on defaulted state claims.36 Going beyond weighing federalism and finality against the possibility of innocence, then, the Ramirez majority views the former factors as so decisive that even innocence cannot outweigh them.37

Ramirez’s deferential, federalism- and finality-centered view of habeas corpus law is not the only view available. In fact, this was not even the view of Justice Scalia, one of the central voices in reducing the scope of habeas corpus. Although the Ramirez majority relied significantly on Scalia’s prior opinions, Scalia showed a consistent awareness of how central habeas is to the American constitutional scheme, cutting against the Ramirez Court’s implicit treatment of habeas as a burdensomely intrusive fact-finding device by foregrounding the writ’s historic role in vindicating the most fundamental due-process rights.38 Counterintuitively, then, Scalia’s views offer a way beyond the Ramirez impasse: not by holding that innocence concerns must outweigh federalism and finality, but by rejecting the balancing act altogether, and reaffirming habeas’s historic role in our constitutional scheme.

Justice Scalia’s sensitivity to habeas’s unique constitutional role shows up in some unlikely places. For example, consider Scalia’s dissent in Brown v. Plata.39 On its face, the case had nothing to do with habeas and instead involved an Eighth Amendment challenge to a dramatic downsizing of the California prison system under the Prison Litigation Reform Act (PLRA).40 The three-judge district-court panel had found prison conditions unsatisfactory, especially with regard to the provision of adequate medical care, and ordered the state to reduce its prison population to 137.5% of the facilities’ design capacity.41 Habeas writs were never issued or requested. Nevertheless, the dissenting Scalia sensed habeas in the air:

Recognizing that habeas relief must be granted sparingly, we have reversed the Ninth Circuit’s erroneous grant of habeas relief to individual California prisoners four times this Term alone. And yet here, the Court affirms an order granting the functional equivalent of 46,000 writs of habeas corpus, based on its paean to courts’ “substantial flexibility when making these judgments.” It seems that the Court’s respect for state sovereignty has vanished in the case where it most matters.42

The core of Scalia’s objection to what he called “perhaps the most radical injunction issued by a court in our Nation’s history” was a mix of “tradition and common sense.”43 Specifically, he pointed to the “stringently drawn provisions of the governing statute,” “traditional constitutional limitations upon the power of a federal judge,” and the “institutional capacity” of the federal courts.44 Beyond the question of what the PLRA did or did not authorize, the Plata cases raised deep questions about the scope of federal courts’ powers in this area. Were courts the right institution to manage questions of medical care in state prisons?45 Was judicial intervention in this sweeping way to address systemic criminal justice issues, medical or otherwise, part of the American constitutional design?46 And what about federalism and state sovereignty?47

Justice Scalia was right to detect habeas corpus behind the Court’s decision in Plata—though not, perhaps, for the reasons he would have given. He raised exactly the right questions about the authority behind the order and about the reach of habeas corpus itself: Do courts have a habeas, or habeas-like, power to review incarcerations on such a sweeping scale, or to challenge executive power in such a dramatic way? Should they? Scalia’s Plata opinion implies, of course, that they should not. But in saying so, he pointed toward a fundamental question about how habeas corpus should be understood in the American constitutional system—a question whose answer has evolved significantly even since Plata was decided, in the wake of Ramirez and other cases.

Similarly—but in a dramatically habeas-vindicating way—in Hamdi v. Rumsfeld, Justice Scalia famously objected to what he took to be the improper restriction of the writ in the face of prolonged government detention without trial or congressional suspension of the writ.48 He did so on the grounds that the detention conflicted with “[t]he gist of the Due Process Clause,” which was “to force the Government to follow those common-law procedures traditionally deemed necessary before depriving a person of life, liberty, or property,” particularly the rights to presentment or indictment and trial.49 As Scalia observed, “These due process rights have historically been vindicated by the writ of habeas corpus,” which “[i]n England before the founding . . . developed into a tool for challenging executive confinement.”50

Underlying both of these opinions is a sense that the habeas power is not to be taken lightly. Bound up with fundamental due-process protections, the habeas writ was viewed by Justice Scalia as a large weapon in the judicial arsenal, to be taken out only when the fundamental criminal due-process rights of indictment and jury trial have been compromised.51 In this regard, those who would restrict habeas to mere jurisdiction-checking have a point: habeas is not just about providing an extra layer of postconviction review.52 Habeas is also, as Scalia’s sense of its centrality suggests, much more than additional postconviction review for what we now might think of as jurisdictional issues.53 As Professor Halliday argues, “Th[e] broad need to do justice for the subject while protecting the honor of king and court provides the key to habeas corpus, mandamus, and all the prerogative writs.”54 Courts have found it understandably difficult to think about the “honor of king and court” in the American context.55 But without this idea—the idea of a review of incarceration that is grounded in principles of fundamental due-process-based legitimacy, as opposed to just factual or procedural correctness—habeas loses its special purpose along with its unique role in our separation-of-powers-based system, and the quasi-”miraculous” tinge that has defined it from its inception.56

Boumediene explored the implications of this “power” frame for extending the Court’s habeas jurisdiction to include noncitizens in outlying territories.57 In view of the historical ties between the writ of habeas corpus, due-process jurisprudence, and the Due Process Clause’s broader status as the site of contemporary thinking about the legitimacy of incarceration, the best way to apply the writ to federal habeas review of both federal and state convictions now—and the method most consistent with the writ’s history—is to apply constitutional due-process protections more rigorously, with a special eye toward the executive branch’s abuses of power.58 Drawing on recent habeas scholarship and on Justice Scalia’s own emphasis on the tie between the habeas writ and basic due-process law, a brief examination of the writ’s history can further sharpen this understanding. As that history shows, Scalia was right to describe the current habeas regime—albeit in the context of lamenting the overzealousness of federal-court review—as a “Faustian bargain.”59

II. habeas legitimacy: before federalism and innocence

That habeas corpus should embody a kind of judge-made, due-process-based legitimacy test focused on executive arbitrariness is firmly grounded in the writ’s history. As some originalist judges like to point out, historically, the common-law writ of habeas corpus did not have much to do with innocence.60 The English Habeas Corpus Act of 1679, on which the U.S. Constitution’s Suspension Clause was partly based, says nothing about innocence.61 And the limited records we have from the royal-prerogative writ’s first few centuries before the Act say little about innocence and much more about reviewing authority for detention: the King, by proxy of the judge, inquired about the authority by which a person was held in custody; and, as the writ matured, the judge required increasingly thorough explanations of the questioned detention.62 These explanations took the form of holistic certifications that we might now consider a rough form of due-process law.63 By the seventeenth century, the requisite explanations generally included the wrong that was done, the statute under which the detainee was apprehended (if applicable), and, at least when relevant, the apprehending authority.64 These explanations required by the judge were not comparable to defenses of the facts of the case as the authority has construed them or of the ultimate guilt of the party in question.65 The first question asked when considering a historical habeas writ was in whose custody, and a close—often more decisive—second was on what authority.66 The importance of these questions remains evident in the custom of bringing the habeas suit against the person on whose authority the prisoner is held—for example, David Shinn, the Director of the Arizona Department of Corrections, in Ramirez.67

Nor did the historical conception of habeas involve subordinating review of the legitimacy of the detention to other principles, such as those underlying modern-day federalism. Of course, there was no such thing as federalism in sixteenth-century England, but there was an interconnected and sometimes redundant array of overlapping spheres of authority—from the King’s Bench and Court of Common Pleas that sat across from each other in Westminster Hall, to the county sheriffs and the full-service, magistrate-prosecutor “justices of the peace.”68 In this system, the habeas power held a unique status above others. Because the authority derived from the King—indeed, habeas corpus roughly translates to a pronouncement from the King that “You shall have the body [brought to me]”69—the habeas writ that inquired into a prisoner’s detention was incomparably superior to other authorities.70 This meant that the lesser authorities from whom information and (if necessary) the body of the detainee was demanded could not make any claim whatsoever—whether based on authority, jurisdiction, or on evidence of obvious guilt—that the body cannot be brought to King because the King lacks the power to order it brought.71 With few exceptions, the only possible response to a habeas writ was an adequate explanation of why and by whom the detainee was held; and only when an adequate explanation was made, did the body not need to be brought before the King’s justices.72

Habeas’s origin as a prerogative writ of the King is often lost in the shuffle of modern discussions of habeas law. Understandably so. We have no contemporary analogue for this role, so the distinction looks at first blush like an irrelevant atavism. However, this history makes clear that the habeas power never could be undermined by anything like a modern American claim to states’ rights, federalism, or comity.

Much has changed in the last five centuries. Claims about habeas corpus’s “original meaning,” especially when that meaning is located in the late medieval period, may understandably fall on unsympathetic ears.73 But before dismissing these historical interventions, one should ask whether they might have something to do with the discordant landscape of habeas law as it stands now—perhaps today more than ever, in the wake of Ramirez and other recent habeas cases.74 Is there not, after all, a fundamental tension between a writ of last resort originally meant to vindicate the legal “rights” of the King, and an individual-rights-based regime overlayed with conflicting sovereign spheres?75 The fact that habeas’s function may have flipped, in a sense, when it was reconceived in the pivotal seventeenth-century parliamentary act as a tool to ferret out unlawful detentions perpetrated by the King himself does not relax this tension: in either case, habeas was, for its first several centuries, a writ concerned with royal power and meant as a last resort either for or against royal power on grounds of illegitimacy based on an appeal to the ultimate sovereign.76 This is in stark contrast with its implicit function, in Ramirez, as a final fact-checking device, to be carefully restrained so as not to embarrass the states.77

This history also creates awkwardness for those committed to treating habeas as substance rather than procedure. On the one hand, habeas is the most substantive writ possible—an imperious demand that the jailer account for the fundamental justice of the detention in terms of an implicit legitimacy-as-justice model, as opposed to a model that more rotely asks only if the defendant in fact “did it.”78 But in contrast with an innocence-privileging lens like that advanced most prominently by Judge Friendly, historical habeas was pureprocedure.79 The writ asked for no aggravating or mitigating information about the detainee, but only whether the proper procedures had been followed with respect to the offense charged. Habeas therefore may be a sterling example of how, in the famous phrase from Henry Maine, substance is “secreted in the interstices of procedure.”80 One might even go further and say that habeas corpus hails from a time when substance and procedure were, at base, indistinguishable.81 Innocence is one way—but critically, not the only way—that incarceration can be fundamentally illegitimate.82

This history should inform our understanding of what the habeas power is for. As Professor Kovarsky has argued, and as the Court’s Boumediene discussion portraying habeas as a separation-of-powers issue suggests, we must refocus our attention on what the words of the writ say on its face: habeas is about, first of all, the judicial power to declare an imprisonment illegitimate, and so to order the release of the prisoner’s body.83 This power was focused especially on correcting acts of executive illegitimacy. Professors Halliday and White summarize:

The justices of King’s Bench used habeas corpus, like the other prerogative writs, to supervise the discretion of judicial and administrative officers of all kinds. Subjects, many quite humble, employed the writ—what Sir Edward Coke saw as an example of the court’s ability to correct any “manner of misgovernment”—to assert the royal prerogative against those whose authority threatened them most: not the Privy Council, but the justices of the peace and statutory commissioners who lived in their own communities.84

Professor Halliday exhaustively documents the use of the habeas writ against the proto-prosecutorial justices of the peace in the first centuries of the writ’s development.85 From the beginning, then, habeas corpus has been about the separation of powers, and specifically about the judicial reining in of the executive branch on issues of incarceration. If habeas corpus is to move past its decades-long impasse in modern American criminal law—or even to make sense again—it must come to terms with its origins as a mode of privileged judicial review for the illegitimacy of executive decisions, where substance and procedure are fundamentally intertwined. This should begin with the language of the writ itself: bring the body before the King. Habeas was originally about the King’s rights, and then the subject’s rights in relation to the King’s.86 Individuals’ rights and states’ rights came later.

III. justice scalia’s criminal due-process law

What should a reimagined habeas law look like in light of this history? This Part proposes a surprising source: Justice Scalia’s late-career criminal due-process jurisprudence. Despite his reluctance to expand federal habeas review of state judgments, Scalia’s close attention to basic criminal due-process protections in cases like Hamdi carried over into one of his most notable jurisprudential interventions: the attack on the mandatory Federal Sentencing Guidelines. With its strong emphasis on bright-line, historic protections against prosecutorial and administrative distortions of basic constitutional rights, Scalia’s campaign against the mandatory Guidelines regime offers a strong model for how judges can reassert the relationship between subject and sovereign that habeas has historically vindicated.87 Buried in Scalia’s attack on the Guidelines was an almost-forgotten sense of what it means to be a constitutional subject under not only state and federal positive law, but also under basic common-law rules, like jury fact-finding and unanimity requirements, which were incorporated into the text and structure of the U.S. Constitution and are specially within the judiciary’s purview.88 If habeas is, at its root, a matter of judicial power, it is critical that the writ be reinstated as a way to provide judges with meaningful room to push back against arbitrary or otherwise constitutionally deficient executive incarceration practices—particularly in an era defined by the functionally unchecked power of prosecutors to exercise near-limitless discretion.89

The idea of a reinvigorated habeas writ may conjure memories of the Warren Court’s criminal-procedure revolution, or of the brief flowering of habeas in that era into an almost-full extra layer of appeal.90 This Essay does not advocate for a return to such a regime. Instead, Justice Scalia’s late-career criminal-procedure opinions should serve as one of the main resources for a legitimacy-based habeas law, focused around basic due-process protections. Scalia’s obstinate—and eventually successful—challenge to the mandatory Federal Sentencing Guidelines regime modeled the kind of big-picture, constitutional, and common-law-based analysis by which courts can reach fundamental questions of legitimacy and executive arbitrariness that the historical habeas power empowers them to ask.91 Scalia’s forceful insistence on the importance—and due-process-based requirement—of unanimous jury fact-finding has echoed through the Court’s later decisions and continues to shape our understanding of what law and justice require in sentencing.92

Modern habeas law should follow a similar path. In conjunction with its function of reviewing incarceration for legitimacy, habeas has always traveled together with the right to a jury trial and with general criminal due-process protections.93 The writ’s importance has receded as prosecutorial plea bargaining has expanded to become a de facto trial replacement, minimizing the significance of the right to trial.94 This is doubly unfortunate: while one might have compensated for the loss of the other, instead both of our primary common-law protections against arbitrary prosecution have been seriously compromised over the course of the last century.95 Professor Akhil Reed Amar has observed that juries were “widely viewed as the lower half of a bicameral judiciary” at the time of the Founding, as the common-law practice of jury nullification dramatically illustrates.96 Despite this history, we are now faced with both federal and state executive branches that are, in practice, subject neither to the review of juries nor, in cases where state counsel is doubly deficient, to the review of judges.

Before turning to Justice Scalia’s criminal due-process opinions directly, it is important to look first at his contrasting involvement in an earlier case, which marks the real, practical boundary of the Court’s late twentieth- and early twenty-first-century habeas jurisprudence and its glaring limitations with respect to the writ’s historical origins. Accordingly, the case that most captures the tension at the core of modern American habeas corpus law is the infamous 1987 capital case McCleskey v. Kemp.97 In McCleskey, the Supreme Court effectively threw up its hands and held that statistically demonstrated systemic arbitrariness was not its job to redress on a habeas petition; more precisely, the Court held that dramatic racial-sentencing disparities do not, without more, make a death sentence unconstitutional, under either the Eighth Amendment’s prohibition on arbitrariness and disproportionality in punishment or the Fourteenth Amendment’s Equal Protection Clause.98 The McCleskey Court asked whether it could consider decisive “systematic and substantial disparities . . . in the penalties imposed upon homicide defendants in Georgia based on race of the homicide victim . . . and defendant[].”99 With Justice Powell writing for the Court and Justice Scalia joining the majority, the Court decided that the empirically demonstrated racial disparities in sentencing were “a far cry from the major systemic defects identified in Furman [v. Georgia],”100 apparently referring to the “unguided sentencing discretion” that was vested “in juries and trial judges” by the state capital statutes that the Court invalidated there.101 The Court apparently viewed this discretion as either more major, or more systemic, than racial disparities in capital sentencing.

In isolation, this might look like boilerplate constitutional law—disparate impact is, of course, not the same as intentional discrimination. But the later course of habeas jurisprudence and legislation has shown that McCleskey marked a pivotal moment where habeas review stopped considering any “systemic” issues whatsoever.102 A memorandum Justice Scalia circulated to the Court before McCleskey was decided is franker about this shift and the reasons for it, more so than the McCleskey opinion itself. Scalia wrote, “Since it is my view that the unconscious operation of irrational sympathies and antipathies, including racial, upon jury decisions and (hence) prosecutorial decisions is real, acknowledged in the decisions of this court, and ineradicable, I cannot honestly say that all I need is more proof.”103 Presented with a chance to check demonstrated executive arbitrariness in capital sentencing—and despite the obvious legitimacy problem that widely known racial sentencing disparities presented—Scalia and the McCleskey Court saw themselves as simply unable to intervene.104

At the turn of the century, however, Justice Scalia found himself taking a very different line in another important series of cases: cases challenging—and eventually invalidating—the then-mandatory Federal Sentencing Guidelines.105 Following an opening salvo on the Guidelines regime in his 2004 Blakely v. Washington majority opinion,106 Scalia joined the majority in United States v. Booker, articulating the rule that “[a]ny fact (other than a prior conviction) which is necessary to support a sentence exceeding the maximum authorized by the facts established by a plea of guilty or a jury verdict must be admitted by the defendant or proved to a jury beyond a reasonable doubt.”107 Because the Guidelines allowed judges to find facts essential to the level of punishment imposed, they violated the fundamental constitutional guarantee of a jury trial.108 Scalia himself reiterated the core of this decision in his Ring v. Arizona concurrence, where, in the capital context, he again insisted:

[T]he fundamental meaning of the jury-trial guarantee of the Sixth Amendment is that all facts essential to imposition of the level of punishment that the defendant receives—whether the statute calls them elements of the offense, sentencing factors, or Mary Jane—must be found by the jury beyond a reasonable doubt.109

This was a systemic critique, although one based on fundamental due-process considerations rather than empirical studies. In the case of Ring, the critique also struck at Congress’s empowerment of judges to treat factual matters requiring proof to a jury as if they were legal issues, striking down Arizona’s practice of allowing judges to find the aggravating circumstances necessary for a capital conviction.110

This may seem not to have much to do with the writ of habeas corpus. But the core of Justice Scalia’s Guidelines decisions is their separation-of-powers-based pushback against the Guidelines’ legislative—and by extension, prosecutors’ executive—encroachment on the historic powers of the judicial branch, including both judge and jury. Scalia insisted forcefully in Ring and elsewhere that the legitimacy of our system and its fact-finding in criminal cases depends on the jury trial being a creature of the judicial branch run by judges and, importantly, by citizens.111 As the Ring majority put it, citing Scalia’s concurrence in Apprendi v. New Jersey—the case that firmly established the requirement that all facts raising the maximum punishment imposed must be found by a jury—although a judge-based fact-finding system might be “an admirably fair and efficient scheme of criminal justice designed for a society that is prepared to leave criminal justice to the State,” the jury-based American system “has never been efficient; but it has always been free.”112 On this view, systemic legislative or executive blurring of the line between elements and other factors (like the judge-found facts mechanism embedded in the mandatory Guidelines regime) represents an illegitimate maneuver away from the ideal constitutional model of the jury trial, with all relevant facts on the table and all necessary elements of the crime proven beyond a reasonable doubt. It did not matter, for these purposes, that the defendant might have done more or less what he was accused of doing, nor that judges might have been better or more efficient at deciding these questions. Judge-made findings of fact that increased punishment were simply illegitimate.113 Defendants were entitled to the Sixth Amendment constitutional “honor” of having every fact essential to their level of punishment found by a jury, and judges could not be made to enforce a fact-finding regime that went against this guarantee.114

Without a clear theory of what habeas is for, however, courts have missed opportunities to challenge other forms of executive arbitrariness. As it turns out, a closer look at McCleskey would have revealed relatively clear evidence of prosecutorial arbitrariness. For example, the state prosecutor withheld evidence related to an allegedly government-coordinated jailhouse confession as part of what the prosecution represented to be the whole government record.115 This claim was not heard by the Supreme Court for procedural-default reasons that were arguably misapplied by the court of appeals.116 McCleskey therefore stands as a warning against courts blinding themselves both to systemic issues and to standalone violations for arcane procedural reasons. From a writ meant to cut “through all forms” of legal proceedings and reopen the question whether those forms were just “an empty shell,” habeas has become too often a hamstrung practice in formalism, blind to systemic issues and blatant executive overreach.117

By contrast, as elaborated in Part II, the ancient writ of habeas corpus was concerned, in the broadest terms, with whether the imprisonment was legitimate, and especially with whether the executive acted arbitrarily in obtaining it.118 The view that habeas cannot factor in intent-free discrimination comes not from anything to do with the history of the writ, but from extrinsic federalism concerns that Justice Scalia himself explicitly dismissed in the Guidelines context.119 In line with Scalia’s Guidelines and capital-sentencing opinions, the modern core of habeas corpus law should strive to ferret out and redress systemic, executive, or legislatively imposed offenses that threaten due process—those practices, in Scalia’s words, that threaten to compromise “those common-law procedures traditionally deemed necessary before depriving a person of life, liberty, or property,” which are “[t]he gist of the Due Process Clause.”120 Such a focus is analogous to the Court’s approach to the Guidelines regime invalidated in Apprendi and Booker, the capital-sentencing regime struck down in Ring, and the mob-dominated trials successfully challenged in previous landmark cases.121 Used this way, the habeas writ could again obtain the stature of the prerogative writ of royal authority from which it developed, without necessarily offending AEDPA’s strictures.122

No one should pretend that these issues are not difficult. In the Court’s words, “McCleskey challenges decisions at the heart of the State’s criminal justice system” with a claim that, “taken to its logical conclusion, throws into serious question the principles that underlie our entire criminal justice system.”123 But the sweep of the questions raised by cases like Warren McCleskey’s should not keep the Court from asking them. If avoidance were the rule, then the Apprendi and Booker decisions would never have come to pass. After all, who would have wanted to put all those facts back on the table for jury determination, when the system as it stood depended on the facts’ being in the hands of judges and the United States Sentencing Commission? The surprising answer is Justice Scalia.

Likewise, judges who are willing to revisit the historic core of habeas corpus and vindicate the history of the writ—not necessarily by overturning the current Court’s rulings on innocence and federalism or by striking down AEDPA—should do so by viewing the writ as an opportunity to discipline prosecutorial arbitrariness and systemic illegitimacy. Just as it is not within judges’ power to deny criminal defendants the right to fact-finding by a jury, it is not within their power to deny them the one remedy specifically secured to them by the Constitution. This should entail, at least, a shift away from the rote assumption that AEDPA forecloses most meaningful avenues of relief on grounds of federalism and finality, and toward a lively awareness that the Constitution’s fundamental due-process protections have “historically been vindicated by the writ of habeas corpus.”124 This does not necessarily mean more habeas; rather, the shift would be toward a habeas more trained on the core rights it has historically protected. In a criminal system that has all but done away with the jury trial, those rights will either be vindicated on habeas review or not vindicated at all.

IV. a case for correction: capital murder in texas

What are the types of errors in our modern-day jurisprudence that this reconceptualized habeas power could correct? To clarify the relationship between Justice Scalia’s due-process decisions and the habeas regime that this Essay has advanced, this Part offers one example of a systemic illegitimacy that is ripe for habeas corpus review: Texas’s sweeping application of its unusually broad capital-murder statute.

Texas allows defendants to be convicted of capital murder based merely on a showing that the murder occurred in the course of committing another felony, even if there is not a unanimous jury finding on whether the defendant actually committed the felony.125 The capital statute lists kidnapping, burglary, robbery, aggravated sexual assault, arson, obstruction or retaliation, and terroristic threat as felonies that can, when they are committed sufficiently proximate to murder, elevate the offense to capital murder.126 In what appears to be a violation of Apprendi and Ring’s requirement that juries must make findings on all facts that raise a defendant’s maximum punishment level, Texas allows prosecutors to allege multiple “in the course of” offenses—kidnapping and robbery, for instance, or obstruction and terroristic threat—without asking the jury to make a specific finding on any one.127 For all intents and purposes, then, a capital-murder case in Texas can be brought merely on factual allegations of murder and some other(unspecified) crime. The Apprendi Court had specifically treated the “sentencing factors” at issue—which were also separate crimes—as elements of the crime that must be proven, so it is hard to see how these “in the course of” offenses could be anything but elements of capital murder, requiring unanimous jury findings beyond a reasonable doubt.128 Even so, the Fifth Circuit delicately avoided this issue and deferred to a state court’s interpretations of the state law in the 2007 case Manns v. Quarterman, upholding the district court’s denial of a habeas petition while observing that the Texas Supreme Court had held that these separate offenses were “manner and means” allegations, not elements, of capital murder.129

Perhaps surprisingly, the lone, uneasy concurrence in the case was written by Judge Emilio Garza, a conservative by reputation. The primary source for Judge Garza’s misgivings was the criminal due-process jurisprudence of Justice Scalia.130 Judge Garza specifically pointed out that the Texas capital-murder statute might violate the Due Process Clause by construing elements as means, in violation of Apprendi and Ring. As applied in the particular case, he “fear[ed] that . . . Texas’s capital murder statute, by allowing a combination of jury findings of kidnaping, robbery, or sexual assault, may be . . . an unconstitutional crime.”131

Judge Garza was right: there is no obvious reason other than pure federalism-based deference and “comity” not to apply the binding Supreme Court precedent of Apprendi and Ring to the Texas capital-murder statute and strike it down. No matter what Texas’s legislature intended or what its court of criminal appeals may say, the Due Process Clause is violated where, as Justice Scalia put it, a fact “essential to imposition of the level of punishment that the defendant receives” is not found by the jury beyond a reasonable doubt.132 Moreover, because Texas law construes “obstruction” and “retaliation” broadly, Texas’s capital-murder statute now includes murders in which the action of a state authority was or could have been involved, or in which the victim felt threatened—in short, almost any murder.133 In multiple ways, then, the statute undermines the legitimacy of Texas’s capital-sentencing regime by making the elevation to capital murder a matter of blatantly arbitrary prosecutorial discretion and jury caprice.134

An additional, complicating wrinkle in Manns relates to the kinds of complex procedural issues revisited by the Supreme Court in Ramirez: there was no trace of the jury-unanimity issue in the record below because, as the petitioner argued at the court of appeals, the defendant’s appellate counsel had been ineffective in failing to raise it.135 Moreover, the Fifth Circuit declined to analyze the straightforward due-process attack on the statute acknowledged by Judge Garza, because the petitioner had invoked only one part of the relevant test.136 In Manns, then, the petitioner raised the relevant claim under the relevant test, but—having already received ineffective assistance of counsel in state court, resulting in his failure to develop the claim there—the petitioner was still blocked from federal-court review of a claim that implicated the fundamental legitimacy of the statute.

As the Fifth Circuit noted, its refusal to hear the obviously most relevant issue was a matter of pure procedure: “Manns did not go on to argue in the district court (and does not argue here) that . . . Texas’s definition of capital murder, as construed by the Court of Criminal Appeals, violates due process. Hence, we do not address it.”137 Because the petitioner had not made quite the right claim, the Fifth Circuit passed on the opportunity to review a systemically arbitrary, legitimacy-threatening aspect of the Texas capital-murder statute that is practically anomalous among the states, and that empowers prosecutors arbitrarily to decide who is charged with a capital offense and who is not. This strikes a blow to the core of judicial power and the jury trial’s fundamental protections. Despite later review by the court of appeals, that illegitimacy has now gone unchecked for another seventeen years. Only a reconceptualized habeas jurisprudence can correct this error.

Conclusion

As this Essay has argued, the judge’s habeas power was, historically, one of the most important common-law checks on the late medieval and early-modern equivalents of what is now prosecutorial power. Without some meaningful form of habeas, the American criminal justice system risks becoming something unrecognizable from the point of view of its own most basic due-process protections: a putatively adversarial system in which prosecutors make all the most important decisions, and judges and juries have increasingly little power to review them. Perhaps in an administrative criminal-law system like the one that the Guidelines attempted to impose, the seemingly anachronistic application of judicial “habeas power” would not be necessary, and there would be no need to talk about the sacred bonds of obligation between the subject and the sovereign, or the “legal miracles” performed by the King.138 But in the system we have, it is sometimes hard to see where else mercy—or even basic federal due-process law—could come from.139

I would like to thank Professors Jenny Carroll and James Q. Whitman for providing guidance on earlier versions of this Essay, and the editors of the Yale Law Journal for their thoughtful suggestions and edits.