Collateral Effects of Habeas Retrogression

*University of Virginia School of Law, J.D. 2023. I am grateful to Professors Payvand Ahdout, Rachel Bayefsky, Thomas Frampton, Caleb Nelson, and Richard Re for their advice and feedback on the many drafts of this Note. For his thoughtful lectures on many of the cases central to my analysis, I am indebted to Dean John C. Jeffries, Jr. For their effort in preparing this Note for publication, I owe thanks to the staff of the Virginia Law Review, especially Laura Lowry, Ella Jenak, Casey Schmidt, and Liam Zeya. Finally, for her endless support, I am grateful to Annie Ranjan.Show More

Prisoners in state custody currently have two avenues to challenge violations of their constitutional rights: petitions for habeas corpus and suits under 42 U.S.C. § 1983. Although the two sometimes overlap, courts have held that § 1983 suits are not available to challenge most constitutional violations that could also be addressed through petitions for habeas corpus. This has excised a substantial category of constitutional violations from § 1983’s scope. Most prominently, any constitutional violation that results in incarceration can only be challenged through habeas corpus, and not through § 1983. In his recent concurrence in Edwards v. Vannoy, Justice Gorsuch suggested a new approach for federal courts evaluating habeas petitions by state prisoners. In his reading, the writ of habeas corpus only allows courts to grant prisoners relief if the court that convicted them lacked jurisdiction. To Justice Gorsuch, constitutional violations that result in incarceration are not grounds for habeas relief, or even habeas inquiry. In this Note, I take Justice Gorsuch’s statement to that effect at face value and explore the necessary implications of his newly proposed regime for habeas corpus. I conclude that if habeas corpus were held to not provide an avenue to challenge violations of constitutional rights, the Supreme Court’s cases limiting § 1983 suits by state prisoners because of the availability of habeas relief would implicitly be overruled. I then demonstrate that state prisoners would often benefit from raising their challenges as § 1983 suits rather than in habeas petitions.

Introduction

In 1871, Congress enacted the third Force Act,¹ 1.Enforcement Act of 1871, ch. 22, § 1, 17 Stat. 13; see also Monroe v. Pape, 365 U.S. 167, 174 (1961) (describing enactment of the Act and its purpose).Show More also called the third Ku Klux Klan Act, and now widely known as the Civil Rights Act.² 2.Zanita E. Fenton, Disarming State Action; Discharging State Responsibility, 52 Harv. C.R.-C.L. L. Rev. 47, 53–54 (2017).Show More The Act, for the first time, allowed federal lawsuits against state actors who were alleged to have violated the federal constitutional³ 3.The Act is also now understood to allow suits based on violations of other federal, non-constitutional rights. See Maine v. Thiboutot, 448 U.S. 1, 7–8 (1980). For the purposes of this Note, however, the ability to bring suit challenging constitutional violations is more relevant.Show More rights of individuals.⁴ 4.See Tiffany R. Wright, Ciarra N. Carr & Jade W.P. Gasek, Truth and Reconciliation: The Ku Klux Klan Hearings of 1871 and the Genesis of Section 1983, 126 Dick. L. Rev. 685, 686 (2022).Show More Prior to its enactment, the only recourse available to someone suffering constitutional injury at the hands of a state was a suit against the state actor under state law. But in cases where a federal constitutional right was violated by a state actor who did not happen to concurrently violate an analogous state law, no remedy was previously available at all.⁵ 5.See Monroe, 365 U.S. at 196 & n.5.Show More The centerpiece of the Act is now codified at 42 U.S.C. § 1983.⁶ 6.42 U.S.C. § 1983.Show More That statute allows suits by individuals for injunction or damages against those acting “under color of” state law who are alleged to have committed a civil rights violation.⁷ 7.Id.Show More

The Ku Klux Klan Act was enacted against a backdrop of rampant violence and lawlessness in the southern states following the Civil War.⁸ 8.Some of the atrocities were described in a letter from President Grant to Congress, within which he reproduced a message from a general stationed in Georgia. See S. Exec. Doc. No. 41-3, at 2 (1869) [hereinafter Presidential Letter] (“[W]ere the most worthless vagabond . . . to be charged with a crime against . . . a negro, neither he nor any other . . . would dare . . . to testify against [the offender], whatever might be their knowledge of his guilt.”).Show More Recently freed slaves and white Republicans were often the targets,⁹ 9.Id. (“[M]ost of the numerous outrages upon freedmen result from hostility to the race, induced by their enfranchisement.”); S. Rep. No. 42-1, at 116 (1871) (“[T]here has been considerable apprehension on the part of the freedmen in regard to their personal safety.”).Show More and state officials—magistrates, constables, sheriffs, and others—were often complicit.¹⁰ 10.See Presidential Letter, supra note 8, at 2 (“Murders have been . . . frequent. . . . There is great reason to believe that in some cases local magistrates are in sympathy with the members of these organizations.”); S. Rep. No. 42-1, at 83 (1871) (“The sheriff belongs to the organization, and so do his deputies.”); id. (“Question: Are the constables all members of it? Answer: Not quite all.”).Show More A key problem that the Act addressed was the inability of the criminal justice system in the South to protect the interests of Black citizens. This manifested both in crimes against Black citizens going unpunished and in Black citizens’ being faced with an unfair and unjust legal system when they themselves were the defendants.¹¹ 11.See Presidential Letter, supra note 8, at 2; see also Blyew v. United States, 80 U.S. (13 Wall.) 581, 583 (1871) (finding that no witnesses were allowed to testify at trial of Black woman’s murderer because all witnesses were Black); Strauder v. West Virginia, 100 U.S. 303, 304 (1879) (describing West Virginia law prohibiting Black citizens from serving on juries); Virginia v. Rives, 100 U.S. 313, 315 (1879) (“The petitioners further represented that their race had never been allowed the right to serve as jurors . . . in the county of Patrick, in any case, civil or criminal.”).Show More

Only a few years before, Congress had enacted the Habeas Corpus Act of 1867,¹² 12.Act of Feb. 5, 1867, ch. 28, § 1, 14 Stat. 385.Show More which addressed similar concerns. Also for the first time, it extended the availability of federal court review to those incarcerated in state prisons or otherwise in state custody.¹³ 13.Paul M. Bator, Finality in Criminal Law and Federal Habeas Corpus for State Prisoners, 76 Harv. L. Rev. 441, 465 (1963).Show More Although the protections of the Great Writ had been constitutionally enshrined since the Founding,¹⁴ 14.U.S. Const. art. I, § 9, cl. 2.Show More federal habeas corpus could previously only be invoked by those in federal custody.¹⁵ 15.Bator, supra note 13, at 465.Show More

The enactment of these two statutes was a moment of promise for the post-Civil War Congress. The Acts represented a commitment by the federal government to offer protection to some of the country’s most marginalized citizens. Individuals who had previously found courts fundamentally inimical to their interests now had an avenue to seek redress for the wrongs they suffered at the hands of powerful actors.

A hundred and fifty years later, both congressional acts have fallen into judicial disfavor. The right of action under § 1983 has been heavily qualified by the application of numerous immunity doctrines that either shield state actors absolutely or protect all but the most egregious offenders.¹⁶ 16.See, e.g., John C. Jeffries, Jr. & George A. Rutherglen, Structural Reform Revisited, 95 Calif. L. Rev. 1387, 1402 (2007) (“As administered by the courts, qualified immunity shields a vast range of garden-variety unconstitutionality from vindication through money damages.”); id. at 1390 n.12 (“The absolute immunity afforded those exercising legislative, judicial, and prosecutorial functions also has been criticized.”).Show More And the once-great writ of habeas corpus has been so riddled with technical, procedural requirements and exemptions that, for most, it might as well not exist at all.¹⁷ 17.See Bryan A. Stevenson, The Politics of Fear and Death: Successive Problems in Capital Federal Habeas Corpus Cases, 77 N.Y.U. L. Rev. 699, 727 (2002) (quoting McFarland v. Scott, 512 U.S. 1256, 1263 (1994) (Blackmun, J., dissenting from denial of certiorari)) (describing the law of habeas corpus as “a doctrinal jumble that had grown too ‘byzantine’ for ready comprehension or utilization”); Z. Payvand Ahdout, Direct Collateral Review, 121 Colum. L. Rev. 159, 174 (2021) (noting that “federal habeas relief is afforded in only 0.29% of noncapital cases,” despite “substantial evidence that states systematically violate criminal defendants’ constitutional rights”).Show More Although the federal judiciary has acted mostly¹⁸ 18.But see 42 U.S.C. § 1997e (placing limitations on some § 1983 suits by prisoners, including exhaustion requirement and limits on attorneys’ fees and recovery).Show More alone in dissecting § 1983, Congress has stepped in to place its own restraints on habeas corpus.¹⁹ 19.See Antiterrorism and Effective Death Penalty Act (AEDPA) of 1996, Pub. L. No. 103-132, 110 Stat. 1214 (codified at 28 U.S.C. § 2254).Show More

All of this would be, apparently, the routine development of federal law, if it were not for one thing: habeas corpus and § 1983 have an unusual, judicially created, inverse relationship of applicability. In a series of cases beginning with Preiser v. Rodriguez, the Supreme Court has held that § 1983’s limitations are dependent on the Great Writ’s outer boundaries.²⁰ 20.411 U.S. 475, 500 (1973).Show More In essence, the Court held that there are some claims that § 1983 does not recognize because habeas corpus covers them instead. The clearest example is that a prisoner cannot bring a suit under § 1983 to challenge the validity of their confinement, even if they allege that that confinement is the result of a constitutional violation by someone acting under color of state law.²¹ 21.Id. at 489.Show More Some suits several steps removed from this paradigmatic case are also within the “core” of habeas and therefore not cognizable under § 1983.²² 22.Id. at 487–88.Show More

In this Note, I examine the implications of the relationship between these two statutes in the face of some recent suggestions by Supreme Court Justices that the writ of habeas corpus should cease to function as it has been understood to for at least the last half century. In effect, I ask how the boundaries of § 1983 that are dependent on the availability of habeas corpus should be affected if the writ’s availability is severely curtailed. Preiser’s holding has long been the source of unanticipated complexities.²³ 23.See Martin A. Schwartz, The Preiser Puzzle: Continued Frustrating Conflict Between the Civil Rights and Habeas Corpus Remedies for State Prisoners, 37 DePaul L. Rev. 85, 87 (1988) (“Preiser . . . leaves open more questions than it answers.”).Show More But while some of the resulting puzzles have been resolved by subsequent cases,²⁴ 24.Compare id. at 117–18 (asking whether, after Preiser, prisoners may bring claims for damages based on constitutional violations that resulted in their incarceration), with Heck v. Humphrey, 512 U.S. 477, 486–87 (1994) (answering that question in the negative).Show More it may be that the bond it strung between habeas corpus and § 1983 has not exhausted its capacity to surprise.

This issue arrives with particular urgency because of a concurrence penned by Justice Gorsuch in the recent case, Edwards v. Vannoy.²⁵ 25.141 S. Ct. 1547 (2021).Show More In that opinion, which is echoed in Justice Gorsuch’s subsequent opinion for the Court in Brown v. Davenport,²⁶ 26.142 S. Ct. 1510 (2022); see also id. at 1531 (Kagan, J., dissenting) (“That account repeats the views expressed in a recent concurrence, authored by the same Justice as today delivers the majority opinion.”).Show More he recounts the modern development of habeas corpus and what he views as its disconnection from its historical operation.²⁷ 27.Edwards, 141 S. Ct. at 1568 (Gorsuch, J., concurring).Show More His conclusion: “[t]he writ of habeas corpus does not authorize federal courts to reopen a judgment issued by a court of competent jurisdiction once it has become final.”²⁸ 28.Id. at 1573.Show More

Reopening judgments issued by courts of competent jurisdiction that have become final is nearly²⁹ 29.Habeas corpus is still invoked, though more rarely, to contest executive detention without trial. See, e.g., Boumediene v. Bush, 553 U.S. 723, 734 (2008).Show More the only thing the writ has done for at least a century. Adoption of Justice Gorsuch’s view would thus have momentous impact—both human and doctrinal.³⁰ 30.See Jonathan R. Siegel, Habeas, History, and Hermeneutics, 64 Ariz. L. Rev. 505, 508 (2022).Show More Even now, few litigants find courts as unfriendly to their claims as prisoners bringing suits against state governments.³¹ 31.Ahdout, supra note 17, at 174.Show More But those governments possess immense power to harm. Prisoners, more than other citizens, are at the government’s absolute mercy and under its complete control. Removing the main avenue through which nearly two million people³² 32.Wendy Sawyer & Peter Wagner, Mass Incarceration: The Whole Pie 2023, Prison Pol’y Initiative (Mar. 14, 2023), https://www.prisonpolicy.org/reports/pie2023.html [https://perma.‌cc/7ZES-P5L7].Show More can challenge violations of their rights by an entity that now controls every aspect of their lives is a proposition that should give us pause.

But Justice Gorsuch’s limitations on the habeas remedy would have a similarly consequential impact on the doctrine that resulted from Preiser and its progeny. That is because Preiser limited the cause of action under § 1983 with explicit reference to and dependence on the availability of habeas review.³³ 33.See Preiser v. Rodriguez, 411 U.S. 475, 486–87 (1973).Show More

Below, I ask whether Justice Gorsuch’s concurrence in Edwards and the Supreme Court’s opinion in Preiser can be reconciled in their reasoning or results. I conclude that they cannot. Justice Gorsuch’s assertion about the limited scope of habeas relief is fundamentally at odds with the reasoning in Preiser and the cases that followed it. Thus, if Justice Gorsuch (and Justice Thomas, who joined him) maintain their views of what claims habeas corpus does not apply to, logic requires that they also reevaluate their views of what § 1983 does apply to.

To explore that assertion, I proceed in four parts. Part I explains Justice Gorsuch’s position on the history of habeas corpus and how it should influence contemporary courts’ willingness to grant the writ. Part II shows the development in courts of an interrelationship between habeas corpus and § 1983 and explains why the cord binding the two doctrines together would be severed by Justice Gorsuch’s reasoning in Edwards. Part III discusses the legal framework that would result if Justice Gorsuch’s opinion were taken to its logical conclusion and prisoners were able to bring § 1983 suits instead of habeas petitions. Part IV offers additional thoughts about the statutory interpretation that would be necessary to reach this result and asks whether that interpretation is unwarranted or implausible as a response to Justice Gorsuch’s own interpretive exercise.

1.  Enforcement Act of 1871, ch. 22, § 1, 17 Stat. 13; see also Monroe v. Pape, 365 U.S. 167, 174 (1961) (describing enactment of the Act and its purpose). ↑
2.  Zanita E. Fenton, Disarming State Action; Discharging State Responsibility, 52 Harv. C.R.-C.L. L. Rev. 47, 53–54 (2017). ↑
3.  The Act is also now understood to allow suits based on violations of other federal, non-constitutional rights. See Maine v. Thiboutot, 448 U.S. 1, 7–8 (1980). For the purposes of this Note, however, the ability to bring suit challenging constitutional violations is more relevant. ↑
4.  See Tiffany R. Wright, Ciarra N. Carr & Jade W.P. Gasek, Truth and Reconciliation: The Ku Klux Klan Hearings of 1871 and the Genesis of Section 1983, 126 Dick. L. Rev. 685, 686 (2022). ↑
5.  See Monroe, 365 U.S. at 196 & n.5. ↑
6.  42 U.S.C. § 1983. ↑
7.  Id. ↑
8.  Some of the atrocities were described in a letter from President Grant to Congress, within which he reproduced a message from a general stationed in Georgia. See S. Exec. Doc. No. 41-3, at 2 (1869) [hereinafter Presidential Letter] (“[W]ere the most worthless vagabond . . . to be charged with a crime against . . . a negro, neither he nor any other . . . would dare . . . to testify against [the offender], whatever might be their knowledge of his guilt.”). ↑
9.  Id. (“[M]ost of the numerous outrages upon freedmen result from hostility to the race, induced by their enfranchisement.”); S. Rep. No. 42-1, at 116 (1871) (“[T]here has been considerable apprehension on the part of the freedmen in regard to their personal safety.”). ↑
10.  See Presidential Letter, supra note 8, at 2 (“Murders have been . . . frequent. . . . There is great reason to believe that in some cases local magistrates are in sympathy with the members of these organizations.”); S. Rep. No. 42-1, at 83 (1871) (“The sheriff belongs to the organization, and so do his deputies.”); id. (“Question: Are the constables all members of it? Answer: Not quite all.”). ↑
11.  See Presidential Letter, supra note 8, at 2; see also Blyew v. United States, 80 U.S. (13 Wall.) 581, 583 (1871) (finding that no witnesses were allowed to testify at trial of Black woman’s murderer because all witnesses were Black); Strauder v. West Virginia, 100 U.S. 303, 304 (1879) (describing West Virginia law prohibiting Black citizens from serving on juries); Virginia v. Rives, 100 U.S. 313, 315 (1879) (“The petitioners further represented that their race had never been allowed the right to serve as jurors . . . in the county of Patrick, in any case, civil or criminal.”). ↑
12.  Act of Feb. 5, 1867, ch. 28, § 1, 14 Stat. 385. ↑
13.  Paul M. Bator, Finality in Criminal Law and Federal Habeas Corpus for State Prisoners, 76 Harv. L. Rev. 441, 465 (1963). ↑
14.  U.S. Const. art. I, § 9, cl. 2. ↑
15.  Bator, supra note 13, at 465. ↑
16.  See, e.g., John C. Jeffries, Jr. & George A. Rutherglen, Structural Reform Revisited, 95 Calif. L. Rev. 1387, 1402 (2007) (“As administered by the courts, qualified immunity shields a vast range of garden-variety unconstitutionality from vindication through money damages.”); id. at 1390 n.12 (“The absolute immunity afforded those exercising legislative, judicial, and prosecutorial functions also has been criticized.”). ↑
17.  See Bryan A. Stevenson, The Politics of Fear and Death: Successive Problems in Capital Federal Habeas Corpus Cases, 77 N.Y.U. L. Rev. 699, 727 (2002) (quoting McFarland v. Scott, 512 U.S. 1256, 1263 (1994) (Blackmun, J., dissenting from denial of certiorari)) (describing the law of habeas corpus as “a doctrinal jumble that had grown too ‘byzantine’ for ready comprehension or utilization”); Z. Payvand Ahdout, Direct Collateral Review, 121 Colum. L. Rev. 159, 174 (2021) (noting that “federal habeas relief is afforded in only 0.29% of noncapital cases,” despite “substantial evidence that states systematically violate criminal defendants’ constitutional rights”). ↑
18.  But see 42 U.S.C. § 1997e (placing limitations on some § 1983 suits by prisoners, including exhaustion requirement and limits on attorneys’ fees and recovery). ↑
19.  See Antiterrorism and Effective Death Penalty Act (AEDPA) of 1996, Pub. L. No. 103-132, 110 Stat. 1214 (codified at 28 U.S.C. § 2254). ↑
20.  411 U.S. 475, 500 (1973). ↑
21.  Id. at 489. ↑
22.  Id. at 487–88. ↑
23.  See Martin A. Schwartz, The Preiser Puzzle: Continued Frustrating Conflict Between the Civil Rights and Habeas Corpus Remedies for State Prisoners, 37 DePaul L. Rev. 85, 87 (1988) (“Preiser . . . leaves open more questions than it answers.”). ↑
24.  Compare id. at 117–18 (asking whether, after Preiser, prisoners may bring claims for damages based on constitutional violations that resulted in their incarceration), with Heck v. Humphrey, 512 U.S. 477, 486–87 (1994) (answering that question in the negative). ↑
25.  141 S. Ct. 1547 (2021). ↑
26.  142 S. Ct. 1510 (2022); see also id. at 1531 (Kagan, J., dissenting) (“That account repeats the views expressed in a recent concurrence, authored by the same Justice as today delivers the majority opinion.”). ↑
27.  Edwards, 141 S. Ct. at 1568 (Gorsuch, J., concurring). ↑
28.  Id. at 1573. ↑
29.  Habeas corpus is still invoked, though more rarely, to contest executive detention without trial. See, e.g., Boumediene v. Bush, 553 U.S. 723, 734 (2008). ↑
30.  See Jonathan R. Siegel, Habeas, History, and Hermeneutics, 64 Ariz. L. Rev. 505, 508 (2022). ↑
31.  Ahdout, supra note 17, at 174. ↑
32.  Wendy Sawyer & Peter Wagner, Mass Incarceration: The Whole Pie 2023, Prison Pol’y Initiative (Mar. 14, 2023), https://www.prisonpolicy.org/reports/pie2023.html [https://perma.‌cc/7ZES-P5L7]. ↑

33.  See Preiser v. Rodriguez, 411 U.S. 475, 486–87 (1973). ↑