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When Habeas Corpus Fails

December 30, 2011

1. History, 2. Law, 7. Post-Trial

When Habeas Corpus Fails

The Writ of Habeas Corpus (Latin – We command that you have the body) is a cornerstone of our Constitutional rights.  Properly filed, it requires the government to produce an incarcerated person and to defend the basis for the imprisonment.  If the government’s defense fails, the person walks … kinda sorta that’s how it works in a drive-by way.

The right originated in the 1100’s in England during the reign of Hank, Jr. (Henry II for you non-Irish, who, btw, was the first member of the in-bred Brit monarchy to invade Ireland).  It obtained its modern form under Hank, Jr’s grandson – Eddy Longshanks (Edward I) around 1305.  And over three centuries later, the Habeas Corpus Act of 1679 hammered it home.  By the time our Constitution v2.0 was written (1788; effective 1789), it wasn’t necessary to define “Writ of Habaes Corpus” – everyone knew what it meant.  Article I, Section 9 includes this passage (the “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.

President Lincoln suspended Habeas in 1862 to round up those pesky Rebels.  It was used appropriately when, during World War 2, we began rounding up American citizens of Japanese descent because, well, they were Japanese.  President Bush (“W”) was accused of suspending Habeas for “enemy combatants” under the Military Commissions Act of 2006, and the liberal media exploded … unlike their utter and shameful silent response to President Obama doing the exact same thing in the NDAA (Section 1301) a few weeks ago … don’t get me started.

Those issues aside, we – as citizens, residents, and people in the United States – have abused Habeas over the centuries.  A Habeas filing has been reduced to a serial joke as prisoners whose appeals are exhausted grasp at any reason to allege their confinement is unconstitutional.  Of the upwards of 18,000 Habeas petitions filed each year by state prisoners, 99.6% are found to be without merit – that’s a win-loss record of 72 and 17,928 … one win in every 250 tries.  That’s worse than the NY Mets.  One response was The Antiterrorism and Effective Death Penalty Act of 1996.  Dealing specifically with Death Penalty cases, prisoners get a single chance to file a Habeas Petition, thus ending the practice of filing and filing and filing until the lonely consumption of the Last Meal and walk to the Death Chamber.

But shouldn’t Habeas be there to correct mistakes?  Everyone in the Criminal Justice game does their best to get it right, and the rules are constantly changing.  So when someone is imprisoned for longer than the law allows, at some point all we have is Habeas to correct it.  It seems ridiculous to get caught up in procedure to the determent of substance.  Although I’m not fully on-board with it, that’s the allegation in the case of Ezell Gilbert.

Ezell got 24 years for selling crack.  He had two prior “violent felonies,” and so the feds pimped him as a career offender with all the sentencing enhancements appurtenant thereto.  Here’s the 11th Circuit’s recent opinion affirming the sentence.  Without the career moniker, he would have gotten 151 to 188 months; with it, the range bumped to 292 to 365 months.  He got 292 months – 24 years, 4 months.  Sucks to be him.  Here’s the rub … one of the priors was carrying a concealed weapon.  That crime (in general, not just his violation of it) was later deemed not to be a “violent felony” (see Begay v. US).  That reclassification meant that he didn’t qualify for sentence enhancement as a career offender.  He should have had his sentence reduced to a max of 188 months, most if not all of which he has served.  But, no, finds the 11th, he sits.

Why?  Because Habeas relief is being contracted, not expanded.  Concerning the 11th’s Opinion:

[T]he Eleventh Circuit decision at issue appears to cut off any avenue for an individual who was mistakenly sentenced to take advantage of a later Supreme Court decision that clearly favors the inmate’s rights.

How odd.  More:

But, even though Gilbert had tried at each stage of his case to contest the treatment of the weapoins (sic) charge as a violent offense, he ultimately was found by the Eleventh Circuit to have raised his claim ultimately in a procedurally flawed way.   He was barred from raising it anew, the Circuit Court majority ruled, because he had tried to raise it earlier — before the Begay decision — and he could not raise it anew even after the Begay ruling.   The 1948 law’s provision allowing federal inmates sometimes to challenge their sentences after they had become final was not available to Gilbert, the Circuit Court concluded, because it simply did not apply to the sentencing context for an individual whose actual sentence was below the maximum set by Congress.

Hmmm … seems to be form over substance to me.  If we have an error in the system, correct the damn thing!

And I find this even more alarming:

The majority did what it could to show that Ezell Gilbert was far from a sympathetic figure deserving any breaks, since he had lived a life of crime and even had the  insensitivity to take his five-year-old daughter, Keidra, along in his car when he drove to a high-crime neighborhood of Tampa to deal drugs to addicts.

WHAT?!?  His rights under the Constitution are conditioned upon you liking him?  Where is that in the entire history of jurisprudence?

And to add insult to injury, the dude was released and then sent back to prison after the 11th pontificated its apparently biased opinion.

SCOTUS is taking up the matter in private conference in several days – January 6, 2012.  The briefs are linked in the article from which the excerpts above are taken.  One can only hope that the drive to streamline Habeas – a worthy endeavor – is achieved by placing substance over procedure.

Sometimes the government just needs to man up.

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About Clyde

Clyde is the lead attorney in the firm. Licensed to practice in 1993, he's also taught Constitutional and Criminal Law for several years at a private university, primarily at the Master's level.

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