This past weekend, the NYT ran an interesting op-ed by two law professors who argued that Habeas Corpus (the ability of prisoners to challenge the lawfulness of their confinement; enshrined in Article 1, Section 9 of the Constitution) should be "limited" to capital and innocence-related cases. All others should be eliminated.
Apparently, they've never read the Prison Litigation Reform Act of 1996, dubbed a "legal garrote" and the most "vicious, detailed and sweeping" piece of legislation ever passed by the Congress of the United States.
The PLRA was a bi-partisan wrecking ball designed specifically to address the issue of "abusive inmate litigation" by putting inmates in a legal choke hold and cutting off access to the courts. Among its dungeon-like measures, the PLRA has a "three strikes" provision which forbids inmates who have three habeas petitions dismissed for being "frivolous or malicious" from ever filing suit again for the rest of their lives.
But the authors ignore this, citing the "17,000 habeas corpus petitions in federal court each year" by inmates, and the "tiny fraction of these habeas petitioners, estimated at less than four-tenths of one percent" who successfully win relief, as evidence that further marginalization of prisoners is necessary.
From their article:
Indeed, the never-ending stream of futile petitions suggests that habeas corpus is a wasteful nuisance. By almost any measure, the use, and abuse, of habeas by convicted state prisoners is a failure, one that could corrode one of the most revered pillars of our legal system.
We need a new approach — one that ensures a more prudent use of habeas in state criminal cases.
Congress should limit habeas review of state criminal cases to two categories in which it actually can do some serious good: capital cases and cases in which the prisoner can produce persuasive new evidence of his innocence. Limiting habeas to these cases will help protect the long-term future of the writ in all of its varied forms.
Meanwhile the pesky 3% of habeas petitions which are successful (not the .004 they misstate), means that over 500 inmates win in federal court each year (despite the PLRA's best efforts), and oftentimes these victories change the way jails, prisons and entire prison systems are run in this country.
But throwing the baby out with the bathwater is exactly what the PLRA acolytes hoped for 15 years ago, and which these two law professors seem to be arguing for today.
And those 17,000 petitions filed each year, "evidence" of too many suits and a number larger than the alarmist 1996 figure of 10,000 petitions? Doesn't that show the PLRA didn't work?
No. It shows that we now have 2.3 million people behind bars in the U.S., a figure that dwarfs the 1 million or so in 1996. More people = more habeas petitions.
The problem isn't with habeas corpus. The problem is in the failure of mass incarceration.