Wednesday, March 30, 2011

Original Habeas Redux

Lee Kovarsky, Original Habeas Redux, 97 Va. L. Rev. 61 (2011):

The Supreme Court's authority to issue an (inaptly named) original writ of habeas corpus is, paradoxically, perhaps its most exotic form of appellate power. The Court frequently decides habeas cases, but only pursuant to its authority to entertain certiorari petitions from lower courts. Few are even aware that the Court or its Justices may issue an original habeas writ, directing the release of a prisoner, from their own chambers. Such relief has not issued since 1925, and the leading Supreme Court treatise describes the jurisdiction as an anachronism. Until last year, a half-century had elapsed before the Court exercised even its related original habeas power to transfer a petition within the federal judiciary.

In August 2009, by transferring a capital prisoner's original habeas petition to a federal district court rather than dismissing it outright, In re Davis abruptly thrust this obscure power back into mainstream legal debate over both the death penalty and the Supreme Court's appellate jurisdiction. Faced with particularly strong evidence that Davis did not commit the murder for which he was convicted, the Court exercised its original habeas power to bypass a statutory authorization proceeding and transferred the case to a U.S. district court for merits adjudication. The petition was the first that the Court had transferred under its original habeas power in almost fifty years.

In this Article, Kovarsky argues that Davis is not a blip in an otherwise constant state of original habeas inactivity. The original writ may be in the midst of a renaissance, emerging as a last-resort means of averting wrongful executions.

[UPDATE:  Kovarsky's Article elicited a response from Stephen Vladeck, Professor of Law at American University Washington College of Law.  See Stephen I. Vladeck, The Supreme Court, Original Habeas, and the Paradoxical Virtue of Obscurity, 97 Va. L. Rev. In Br. 31 (2011).]

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