The Enduring Challenges for Habeas Corpus
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The Enduring Challenges for Habeas Corpus
Diane P. Wood*
The late great physicist Richard Feynman is thought once to have said “If you think you understand quantum mechanics, you don’t understand quantum mechanics.”1 Or maybe the idea expressed in that quip came from Niels Bohr, who is quoted as saying, “Anyone who is not shocked by quantum theory has not understood it.”2 For our purposes, it does not matter who said it first: the key point is that there are some fields for which a little knowledge actually conceals the true nature of the challenge. It would be an overstatement to say that the law of habeas corpus approaches the mind-bending complexity of quantum mechanics.3 But habeas corpus has tied courts and legal scholars into knots for many years. One of the finest efforts to disentangle it—and to grapple with the question how, if at all, habeas corpus should be used for those whose detention flows from a criminal trial—is now fifty years old. I am speaking of Judge Henry Friendly’s thoughtful article, published in 1970 in the University of Chicago Law Review, entitled Is Innocence Irrelevant? Collateral Attack on Criminal Judgments.4
Habeas corpus law has not remained static during the half century since Judge Friendly wrote, but neither has it provided satisfactory answers to the problems that he highlighted in his article. Unfortunately, many of the changes—well intended as they were by the enactors and implementers— have done nothing but create endless hurdles, loops, and traps for potential users. Enormous resources are poured into this elusive remedy. The rule of law is not well served when people are told that they have a remedy, but in fact they do not. Far better to have truth-in-labeling, so that the cases that deserve collateral review get it, and those that do not are more clearly identified from the outset and quickly dismissed. This is the goal that Judge Friendly set for himself in his article, but unfortunately it is not one that we have yet attained. Whether that is because of flaws in his suggestions, or failures to adopt them, is the subject of this Article. The answer, I suggest, is a little of both: some of his suggestions need further refinement, and others simply need to be implemented more vigorously. In the end, a remarkable number of Judge Friendly’s observations still apply to today’s writ, and thus many of his prescriptions remain well worth legislative attention.
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© 2020 Diane P. Wood. Individuals and nonprofit institutions may reproduce and distribute copies of this Article in any format at or below cost, for educational purposes, so long as each copy identifies the authors, provides a citation to the Notre Dame Law Review, and includes this provision in the copyright notice.
*Chief Judge, United States Court of Appeals for the Seventh Circuit.
1 Talk: Richard Feynman, Wikiquote, https://en.wikiquote.org/wiki/Talk:Richard_ Feynman (last updated Oct. 7, 2019) (attributing the quote, in 2014, to a university lecture called The Character of Physical Law).
2 Niels Bohr, WIKIQUOTE, https://en.wikiquote.org/wiki/Niels_Bohr (last updated Feb. 11, 2020). There is dispute surrounding the quote. Karen Barad attributed this specific variant to Bohr in Karen Michelle Barad, Meeting the Universe Halfway 254 (2007), with the quote attributed to Niels Bohr, THE Philosophical Writings of Niels Bohr (1987), although without any page number or volume number.
3 If you doubt that characterization of quantum mechanics, I invite you to read the fascinating book by John Gribbin, In Search of Schrodinger’s Cat: Quantum Physics and Reality (1984). You will be convinced.
4 Henry J. Friendly, Is Innocence Irrelevant? Collateral Attack on Criminal Judgments, 38 U. Chi. L. Rev. 142 (1970).