Note

Making Section 1983 Malicious-Prosecution Suits Work

The Supreme Court can’t seem to get over Section 1983 malicious prosecution. Thirty years and three significant cases into its project, however, the lower courts look about the same as they did in the early 1990s. The problem is not lack of effort, but lack of proper focus. The Court first endeavored to identify the proper constitutional source of a malicious-prosecution right, all the while failing to consider the more practical problems that make Section 1983 malicious-prosecution claims nearly impossible to win.

The Court seemed to reverse its course in Thompson v. Clark, eschewing big constitutional questions in favor of a narrow, practical one. This Note applauds that turn in spirit. But it seems that the Court overcorrected by choosing too small of a question. This Note contributes the first postmortem of Thompson and finds that a year later, the lower courts look like nothing ever happened: almost every Section 1983 malicious-prosecution case since has been dismissed for reasons unrelated to Thompson’s favorable-termination rule.

What if instead of asking questions too big to be practically impactful, or too small to do much work on their own, we found the questions that are “just right”? This Note identifies these questions by analyzing remaining splits in the lower courts and where those splits overlap with the issues killing otherwise meritorious Section 1983 malicious-prosecution claims. By asking and answering the right questions, this Note constructs a version of Section 1983 malicious prosecution that could work in real life.

Introduction

How do you define a right if you aren’t sure it exists? The right to be free from malicious prosecution has remained elusive despite decades of judicial and scholarly attention. Some still debate whether it even exists, and many more argue that it should not. The constitutional malicious-prosecution claim often brought under Section 1983 is something of an enigma—despite the name, the claims generally are not brought against prosecutors, and they rarely involve malice in an ordinary sense. Rather, they are part of the family of constitutional torts aimed at addressing police misconduct—here, for initiating criminal prosecutions without probable cause.

These lawsuits serve two critical roles. First, they provide redress for the harms uniquely associated with enduring a criminal prosecution, namely, being deprived of rights “to make basic decisions about the future; to participate in community affairs; to take advantage of employment opportunities; to cultivate family, business, and social relationships; and to travel from place to place.”1 1.Albright v. Oliver, 510 U.S. 266, 294 (1994) (Stevens, J., dissenting).Show More And second, because malicious-prosecution claims are not ripe until favorable termination—which occurs when a prosecution ends without a conviction2 2.Thompson v. Clark, 142 S. Ct. 1332, 1335 (2022).Show More—they may extend the timeframe to bring civil-rights suits. Because companion constitutional torts generally accrue much earlier,3 3.If a person was unlawfully arrested and then fought charges resulting from the false arrest for two years (and thus was procedurally barred from raising the claim, see Heck v. Humphrey, 512 U.S. 477, 486–87 (1994) (holding that a damages suit challenging the constitutionality of an imprisonment or conviction “is not cognizable under § 1983” unless plaintiff can demonstrate favorable termination of underlying criminal matter)), for example, the statute of limitations on that false-arrest claim might expire while the harm of the officer’s misconduct was still ongoing. Federal courts also generally abstain from hearing cases challenging state prosecutions while they are ongoing. See Younger v. Harris, 401 U.S. 37, 53 (1971) (reaffirming this principle); see also Brief for Federal Courts Scholars as Amicus Curiae Supporting Petitioner, Thompson, 142 S. Ct. 1332 (No. 20-659) (clarifying that these doctrines and their underlying federalism rationales have little force after favorable termination).Show More malicious-prosecution suits give a person more time to vindicate at least some of their rights.4 4.Compare Manuel v. City of Joliet, 590 F. App’x 641, 643 (7th Cir. 2015) (rejecting unlawful-arrest claim as time barred), with Manuel v. City of Joliet, 580 U.S. 357, 360 (2017) (finding malicious-prosecution claim did not accrue until prosecution ended, thus extending time to file by about two months).Show More

But regardless of how important they are in theory, in practice, these suits rarely succeed. Despite significant debate over the proper constitutional home of malicious prosecution,5 5.See, e.g., Eric J. Wunsch, Note, Fourth Amendment and Fourteenth Amendment—Malicious Prosecution and 1983: Is There a Constitutional Violation Remediable Under Section 1983?, 85 J. Crim. L. & Criminology 878, 878 (1995) (arguing that malicious prosecutions violate the Procedural Due Process Clause); John T. Ryan, Note, Malicious Prosecution Claims Under Section 1983: Do Citizens Have Federal Recourse?, 64 Geo. Wash. L. Rev. 776, 778 (1996) (favoring due process framework and disputing that Albright forecloses it); Esther M. Schonfeld, Malicious Prosecution as a Constitutional Tort, 15 Touro L. Rev. 1681, 1682 (1999) (describing Albright as a failed effort); Jacques L. Schillaci, Note, Unexamined Premises: Toward Doctrinal Purity in § 1983 Malicious Prosecution Doctrine, 97 Nw. U. L. Rev. 439, 443 (2002) (supporting “divorce” between malicious prosecution and Section 1983); Jacob Paul Goldstein, Note, From the Exclusionary Rule to a Constitutional Tort for Malicious Prosecutions, 106 Colum. L. Rev. 643, 657 (2006) (describing “a Fourth Amendment right to be free from malicious prosecution” but suggesting that current version is not functional); Lyle Kossis, Note, Malicious Prosecution Claims in Section 1983 Lawsuits, 99 Va. L. Rev. 1635, 1637 (2013) (suggesting the Fifth and Fourteenth Amendments as better homes); Erin E. McMannon, Note, The Demise of § 1983 Malicious Prosecution: Separating Tort Law From the Fourth Amendment, 94 Notre Dame L. Rev. 1479, 1498–99 (2019) (arguing that no constitutional right to be free from malicious prosecution exists); Timothy Tymkovich & Hayley Stillwell, Malicious Prosecution as Undue Process: A Fourteenth Amendment Theory of Malicious Prosecution, 20 Geo. J.L. & Pub. Pol’y 225, 228 (2022) (describing substantive due process as a “superior doctrinal account of malicious prosecution”).Show More there is little clarity on its practicalities: after thirty years of effort, an “embarrassing diversity of judicial opinion” remains.6 6.Albright v. Oliver, 975 F.2d 343, 345 (7th Cir. 1992) (Posner, J.).Show More In Albright v. Oliver,7 7.510 U.S. 266 (1994) (plurality opinion).Show More and again nearly twenty-five years later in Manuel v. City of Joliet,8 8.580 U.S. 357 (2017).Show More the U.S. Supreme Court made its first error: by focusing only on whether malicious prosecution is properly housed in the Fourth or Fourteenth Amendment, the Court twice missed its chance to intervene in any practical sense. Both decisions had shockingly little real-world impact.9 9.See, e.g., Kossis, supra note 5, at 1646–48 (describing post-Albright circuit splits); McMannon, supra note 5, at 1493 (same post-Manuel).Show More But two years ago, in Thompson v. Clark,10 10.142 S. Ct. 1332 (2022).Show More the Court made a new kind of error: by failing to address the most important problems in Section 1983 malicious-prosecution litigation, the Court issued an ostensibly good decision that, as this Note discovers, also failed to make much of a difference.11 11.See infra Section II.C.Show More At each turn, the Court has failed to identify the sources of malicious prosecution’s challenges and thus has failed to provide solutions tailored to those core problems. This Note fills that gap.

By exploring for the first time how the U.S. Courts of Appeals have responded to Thompson, this Note identifies two primary issues. First, in the wake of Thompson, the high-level disagreement that Judge Posner called “embarrassing”12 12.Albright v. Oliver, 975 F.2d 343, 345 (7th Cir. 1992).Show More endures.13 13.See infra Section II.C for discussion of the many differences between the circuits, and even within them, on the basic elements of a Section 1983 malicious-prosecution claim.Show More Here, “[v]aried interpretation of federal constitutional law raises . . . troubling[] questions,” and nonuniformity has had tangible consequences.14 14.See Amanda Frost, Overvaluing Uniformity, 94 Va. L. Rev. 1567, 1569 n.5 (2008) (suggesting that uniformity may be important where nonuniformity has tangible consequences or where questions of federal constitutional law are at stake).Show More The details of these claims diverge wildly depending on the circuit, and even within circuits, so plaintiffs—many of whom are not represented by counsel15 15.See Joanna C. Schwartz, Civil Rights Without Representation, 64 Wm. & Mary L. Rev 641, 650–52 (2023) (discussing difficulties securing counsel in civil-rights cases).Show More—have little chance of figuring it out. Specifically, there is significant disagreement on the two usual elements of a Section 1983 malicious-prosecution claim that most often prove fatal: probable cause and malice. The initiation of criminal charges without probable cause is the “gravamen” of malicious prosecution,16 16.Thompson v. Clark, 142 S. Ct. 1332, 1337 (2022).Show More but there is little clarity on what probable cause is relevant.17 17.There is little guidance, generally, on what courts are supposed to make of probable cause. See Andrew Manuel Crespo, Probable Cause Pluralism, 129 Yale L.J. 1276, 1370 (2020) (“[I]n an effort to make probable cause mean everything at once, those entrusted with its enforcement have made it so vague as to mean almost nothing at all.”). As Professor Crespo has argued, existing probable-cause doctrine fails “to guide the judge through that decision—and to help everyone else predict how a judge might rule.” Id. at 1280.Show More Because malicious-prosecution defendants are typically police officers or investigators, and not those directly responsible for decisions to prosecute,18 18.SeeImbler v. Pachtman, 424 U.S. 409, 431 (1976) (holding that prosecutors have absolute immunity from Section 1983 malicious-prosecution suits).Show More it can be hard to parse whose decisions—and which of those decisions—matter. Lack of malice, while not always even an element of malicious prosecution, can serve as a nearly insurmountable barrier to plaintiffs.

Second, because the Court has never directly considered what the “seizure” in a malicious prosecution is, some lower courts have artificially narrowed Section 1983 malicious-prosecution claims to encompass only suits where the plaintiff was detained. This misunderstands the harm of a malicious prosecution and closes courthouse doors to individuals whose constitutional rights have been violated. Although we more often think of trans-substantive doctrines like qualified immunity as limitations on the availability of damages remedies, here we see remedial access limited through a restrictive framing of the substantive right itself.19 19.See John C. Jeffries, Jr., Pamela S. Karlan, Peter W. Low & George A. Rutherglen, Civil Rights Actions: Enforcing the Constitution 255 (5th ed. 2022); see also Richard H. Fallon, Jr., The Linkage Between Justiciability and Remedies—And Their Connections to Substantive Rights, 92 Va. L. Rev. 633, 637 (2006) (“[W]hen the Court dislikes an outcome or pattern of outcomes, it will often be equally possible for the Justices to reformulate applicable justiciability doctrine, substantive doctrine, or remedial doctrine.”).Show More

Answering these questions the right way could produce the result the Court’s repeated efforts would suggest it desires—a settled doctrinal framework for malicious-prosecution claims brought under Section 1983. And more importantly, clarifying the scope of malicious-prosecution claims should cure the notice issues and inconsistencies that make them harder to win than they should be. Maybe the fourth time could be the charm?

This Note explores these questions through three Parts. Part I will discuss the Court’s historical efforts to determine where a right to be free from malicious prosecution is located in the Constitution, a project that failed to yield doctrinal stability. Part II will provide the first postmortem of Thompson—a case that, promisingly, addressed a narrow, technical aspect of Section 1983 litigation—and explore its (limited) impacts on the lower courts. Part III will answer the questions at the root of Section 1983 malicious prosecution’s problems—those identified in Part II. This Note thus has two primary contributions: first, it provides a descriptive account of the lower courts after Thompson, which both makes evident the Court’s failure in problem identification and identifies the right problems to address next; and second, through answering the questions left open after Thompson, it provides the first account of malicious prosecution that solves the meaningful practical problems that have, until now, gone unaddressed. The goal of this Note is simple: to make Section 1983 malicious-prosecution suits work.

  1.  Albright v. Oliver, 510 U.S. 266, 294 (1994) (Stevens, J., dissenting). ↑
  2.  Thompson v. Clark, 142 S. Ct. 1332, 1335 (2022). ↑
  3.  If a person was unlawfully arrested and then fought charges resulting from the false arrest for two years (and thus was procedurally barred from raising the claim, see Heck v. Humphrey, 512 U.S. 477, 486–87 (1994) (holding that a damages suit challenging the constitutionality of an imprisonment or conviction “is not cognizable under § 1983” unless plaintiff can demonstrate favorable termination of underlying criminal matter)), for example, the statute of limitations on that false-arrest claim might expire while the harm of the officer’s misconduct was still ongoing. Federal courts also generally abstain from hearing cases challenging state prosecutions while they are ongoing. See Younger v. Harris, 401 U.S. 37, 53 (1971) (reaffirming this principle); see also Brief for Federal Courts Scholars as Amicus Curiae Supporting Petitioner, Thompson, 142 S. Ct. 1332 (No. 20-659) (clarifying that these doctrines and their underlying federalism rationales have little force after favorable termination). ↑
  4.  Compare Manuel v. City of Joliet, 590 F. App’x 641, 643 (7th Cir. 2015) (rejecting unlawful-arrest claim as time barred), with Manuel v. City of Joliet, 580 U.S. 357, 360 (2017) (finding malicious-prosecution claim did not accrue until prosecution ended, thus extending time to file by about two months). ↑
  5.  See, e.g., Eric J. Wunsch, Note, Fourth Amendment and Fourteenth Amendment—Malicious Prosecution and 1983: Is There a Constitutional Violation Remediable Under Section 1983?, 85 J. Crim. L. & Criminology 878, 878 (1995) (arguing that malicious prosecutions violate the Procedural Due Process Clause); John T. Ryan, Note, Malicious Prosecution Claims Under Section 1983: Do Citizens Have Federal Recourse?, 64 Geo. Wash. L. Rev. 776, 778 (1996) (favoring due process framework and disputing that Albright forecloses it); Esther M. Schonfeld, Malicious Prosecution as a Constitutional Tort, 15 Touro L. Rev. 1681, 1682 (1999) (describing Albright as a failed effort); Jacques L. Schillaci, Note, Unexamined Premises: Toward Doctrinal Purity in § 1983 Malicious Prosecution Doctrine, 97 Nw. U. L. Rev. 439, 443 (2002) (supporting “divorce” between malicious prosecution and Section 1983); Jacob Paul Goldstein, Note, From the Exclusionary Rule to a Constitutional Tort for Malicious Prosecutions, 106 Colum. L. Rev. 643, 657 (2006) (describing “a Fourth Amendment right to be free from malicious prosecution” but suggesting that current version is not functional); Lyle Kossis, Note, Malicious Prosecution Claims in Section 1983 Lawsuits, 99 Va. L. Rev. 1635, 1637 (2013) (suggesting the Fifth and Fourteenth Amendments as better homes); Erin E. McMannon, Note, The Demise of § 1983 Malicious Prosecution: Separating Tort Law From the Fourth Amendment, 94 Notre Dame L. Rev. 1479, 1498–99 (2019) (arguing that no constitutional right to be free from malicious prosecution exists); Timothy Tymkovich & Hayley Stillwell, Malicious Prosecution as Undue Process: A Fourteenth Amendment Theory of Malicious Prosecution, 20 Geo. J.L. & Pub. Pol’y 225, 228 (2022) (describing substantive due process as a “superior doctrinal account of malicious prosecution”). ↑
  6.  Albright v. Oliver, 975 F.2d 343, 345 (7th Cir. 1992) (Posner, J.). ↑
  7.  510 U.S. 266 (1994) (plurality opinion). ↑
  8.  580 U.S. 357 (2017). ↑
  9.  See, e.g., Kossis, supra note 5, at 1646–48 (describing post-Albright circuit splits); McMannon, supra note 5, at 1493 (same post-Manuel). ↑
  10.  142 S. Ct. 1332 (2022). ↑
  11.  See infra Section II.C. ↑
  12.  Albright v. Oliver, 975 F.2d 343, 345 (7th Cir. 1992). ↑
  13.  See infra Section II.C for discussion of the many differences between the circuits, and even within them, on the basic elements of a Section 1983 malicious-prosecution claim. ↑
  14.  See Amanda Frost, Overvaluing Uniformity, 94 Va. L. Rev. 1567, 1569 n.5 (2008) (suggesting that uniformity may be important where nonuniformity has tangible consequences or where questions of federal constitutional law are at stake). ↑
  15.  See Joanna C. Schwartz, Civil Rights Without Representation, 64 Wm. & Mary L. Rev 641, 650–52 (2023) (discussing difficulties securing counsel in civil-rights cases). ↑
  16.  Thompson v. Clark, 142 S. Ct. 1332, 1337 (2022). ↑
  17.  There is little guidance, generally, on what courts are supposed to make of probable cause. See Andrew Manuel Crespo, Probable Cause Pluralism, 129 Yale L.J. 1276, 1370 (2020) (“[I]n an effort to make probable cause mean everything at once, those entrusted with its enforcement have made it so vague as to mean almost nothing at all.”). As Professor Crespo has argued, existing probable-cause doctrine fails “to guide the judge through that decision—and to help everyone else predict how a judge might rule.” Id. at 1280. ↑
  18.  See Imbler v. Pachtman, 424 U.S. 409, 431 (1976) (holding that prosecutors have absolute immunity from Section 1983 malicious-prosecution suits). ↑

  19.  See John C. Jeffries, Jr., Pamela S. Karlan, Peter W. Low & George A. Rutherglen, Civil Rights Actions: Enforcing the Constitution 255 (5th ed. 2022); see also Richard H. Fallon, Jr., The Linkage Between Justiciability and Remedies—And Their Connections to Substantive Rights, 92 Va. L. Rev. 633, 637 (2006) (“[W]hen the Court dislikes an outcome or pattern of outcomes, it will often be equally possible for the Justices to reformulate applicable justiciability doctrine, substantive doctrine, or remedial doctrine.”). ↑

Is Performing an Abortion a Removable Offense? Abortion Within the Crimes Involving Moral Turpitude Framework

Before Roe v. Wade was decided, the Board of Immigration Appeals (“BIA”) found that performing an illegal abortion was a crime involving moral turpitude in the context of immigration law. As a result, pre-Roe, a noncitizen could be removed from or declared inadmissible to the United States if they were convicted of or admitted to performing an illegal abortion. Because the standard of moral turpitude is one that evolves with society as societal values change, it is unclear that the BIA would still find performing an illegal abortion to be a crime involving moral turpitude today. In order for a conviction to constitute a crime involving moral turpitude, the statute the defendant was convicted under must require sufficient intent and criminalize reprehensible conduct. This Note looks to the history of moral turpitude and the current tests applied in immigration law to determine whether performing an illegal abortion could be considered a crime involving moral turpitude post-Dobbs v. Jackson Women’s Health Organization. After applying the relevant tests and comparing performing an illegal abortion to crimes that have previously been designated crimes involving moral turpitude, this Note reaches the conclusion that performing an illegal abortion should not be found to be a crime involving moral turpitude.

Introduction

In 1946, before Roe v. Wade or Planned Parenthood of Southeastern Pennsylvania v. Casey were decided,1 1.See generally Roe v. Wade, 410 U.S. 113 (1973); Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833 (1992).Show More the Board of Immigration Appeals (“BIA”) determined that performing an illegal abortion was a crime involving moral turpitude (“CIMT”) in the immigration context.2 2.Matter of M—–, 2 I. & N. Dec. 525, 528 (B.I.A. 1946).Show More As a result, pre-Roe, a noncitizen could be removed from or declared inadmissible to the United States if they were convicted of performing an illegal abortion.3 3.The current version of the Immigration and Nationality Act states that a noncitizen is inadmissible if they have been convicted of or admit to having committed a CIMT. 8 U.S.C. § 1182(a)(2)(A)(i)(I). A noncitizen who has been legally in the United States is removable if they are convicted of a single CIMT within five years of admission and if the conviction carried a potential imprisonment of at least one year. Id. § 1227(a)(2)(A)(i). A noncitizen is removable if they commit two CIMTs not arising out of a single scheme of criminal misconduct at any point after admission. Id. § 1227(a)(2)(A)(ii).Show More While there has not been an immigration case determining whether performing an illegal abortion is a CIMT post-Roe, the Supreme Court’s ruling in Dobbs v. Jackson Women’s Health Organization4 4.142 S. Ct. 2228 (2022).Show More creates the possibility that this may change. It is important for both criminal defense attorneys and immigration advocates to be aware of the implications of this reality.

This Note explores the history of moral turpitude and analyzes whether performing an illegal abortion would be considered a CIMT today. After the Supreme Court decided Dobbs, overturning Roe and Casey,5 5.Id. at 2242.Show More the United States faced, and still faces, a period of uncertainty regarding abortion laws. At the time Dobbs was decided, some states had trigger laws in place that immediately outlawed virtually all abortion as soon as Roe was overturned,6 6.See, e.g., La. Stat. Ann. § 40:1061 (2023).Show More while other states passed new abortion bans,7 7.See, e.g., West Virginia Gov. Jim Justice Signs Abortion Ban Into Law, Politico (Sept. 16, 2022, 2:17 PM), https://www.politico.com/news/2022/09/16/west-virginia-jim-justice-abort‌ion-ban-law-00057255 [https://perma.cc/7GN9-UWKV].Show More the strictest of which criminalized abortion from the time of conception.8 8.Ark. Code Ann. §§ 5-61-303 to 5-61-304 (Supp. 2023).Show More These new laws conflict with previously existing statutes at times9 9.Rebecca Boone & Claire Rush, Post-Roe, States Struggle With Conflicting Abortion Bans, AP News (July 1, 2022, 6:41 PM), https://apnews.com/article/abortion-state-governments-idaho-afa15cab32e3f46524997e0255fe8c8f [https://perma.cc/9NKK-JGXC].Show More and create an unclear line between a legal abortion under federal law and a felony abortion under state law.10 10.Compare Exec. Order No. 14,067, 87 C.F.R. 42053 (July 8, 2022) (stating that abortion is “essential to justice, equality, and our health, safety, and progress as a Nation” and directing the Secretary of Health and Human Services to protect and expand access to abortion care), with Tex. Health & Safety Code Ann. § 170A.004 (West 2022) (classifying abortion as a felony of the first or second degree). A similar conflict is currently being litigated in the U.S. Court of Appeals for the Ninth Circuit with respect to Idaho’s abortion law. United States v. Idaho, No. 23-35440, 2023 WL 6308107, at *1 (9th Cir. Sept. 28, 2023). The federal government argued that federal law could require abortions which are not included under the State’s life of the mother exception. Id. at *3. The Ninth Circuit found in favor of the State, overturning a district court decision and granting a stay of the preliminary injunction on Idaho’s abortion law. Id. at *1, *7. The Ninth Circuit panel stated that the state law did not restrict abortions required by federal law. Id. at *5. The Ninth Circuit later vacated the order and agreed to rehear the matter en banc. See United States v. Idaho, 82 F.4th 1296 (9th Cir. 2023). An en banc panel subsequently denied Idaho’s motion to stay the injunction pending appeal. See United States v. Idaho, 2023 U.S. App. LEXIS 30135 (9th Cir. Nov. 13, 2023).Show More Other states have since passed new statutes to protect an individual’s right to receive an abortion.11 11.As of sixty days after Dobbs was passed, sixteen states had “passed legislation to protect access to abortion before and in response to Dobbs.” Larissa Jimenez, 60 Days After Dobbs: State Legal Developments on Abortion,Brennan Ctr. for Just. (Aug. 24, 2022), https://www.brennancenter.org/our-work/research-reports/60-days-after-dobbs-state-legal-de‌velopments-abortion [https://perma.cc/VB7W-SVPY].Show More Immigration attorneys have recognized the danger these new abortion laws may present in immigration law.12 12.Immigration attorneys and advocates published an open letter to the Department of Homeland Security (“DHS”) after Dobbs, requesting that DHS clarify that abortion-related convictions would not be used as a basis for immigration enforcement actions. Letter from Advocs. for Youth et al. to Alejandro N. Mayorkas, Sec’y, U.S. Dep’t of Homeland Sec. (July 19, 2022), https://www.americanimmigrationcouncil.org/sites/default/‌files/research/coalition‌_ur‌ges_dhs_to_protect_the_right_to_abortion_after_dobbs.pdf [https://perma.cc/5LAJ-SX‌HP].Show More

The term “crime . . . involving moral turpitude” first appeared in immigration law in the Immigration Act of 1891 as a ground for exclusion13 13.Immigration Act of 1891, Pub. L. No. 51-551, § 1, 26 Stat. 1084.Show More and was designated by Congress as a ground for removal in 1917.14 14.Immigration Act of 1917, Pub. L. No. 64-301, § 19, 39 Stat. 874.Show More The term “crime involving moral turpitude” has never been defined by Congress15 15.See Jordan v. De George, 341 U.S. 223, 234 (1951) (Jackson, J., dissenting) (“Congress did not see fit to state what meaning it attributes to the phrase ‘crime involving moral turpitude.’”); see also De Leon v. Lynch, 808 F.3d 1224, 1228 (10th Cir. 2015) (“The phrase ‘crime involving moral turpitude’ is not defined in the INA; instead, its contours have been shaped through interpretation and application by the Attorney General, the Board, and federal courts. It is ‘perhaps the quintessential example of an ambiguous phrase.’”).Show More and instead has largely been left to judicial interpretation. The result is a patchwork area of law, with circuit splits both as to what constitutes a CIMT and what the correct test is to apply to make that determination. The current definition put forth by the BIA is that a CIMT is “conduct that is ‘inherently base, vile, or depraved, and contrary to the accepted rules of morality and the duties owed between persons or to society in general.’”16 16.Matter of Silva-Trevino, 26 I. & N. Dec. 826, 833 (B.I.A. 2016) (citation omitted) (interim decision).Show More

This Note will analyze total abortion bans enacted in the United States under the modern immigration CIMT framework and provide a basis for immigration advocates to argue that performing an illegal abortion is not a CIMT. Part I provides a brief history of CIMTs, both within and beyond immigration law. Part II provides an overview of the current frameworks used by the BIA and federal courts to determine if a conviction constitutes a CIMT. Part III analyzes how modern abortion bans are likely to fit within this framework, finding that these illegal abortions are unlikely to be considered CIMTs. Part IV discusses the potential implications were the BIA or a federal court to find that performing an abortion is a CIMT.

  1.  See generally Roe v. Wade, 410 U.S. 113 (1973); Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833 (1992). ↑
  2.  Matter of M—–, 2 I. & N. Dec. 525, 528 (B.I.A. 1946). ↑
  3.  The current version of the Immigration and Nationality Act states that a noncitizen is inadmissible if they have been convicted of or admit to having committed a CIMT. 8 U.S.C. § 1182(a)(2)(A)(i)(I). A noncitizen who has been legally in the United States is removable if they are convicted of a single CIMT within five years of admission and if the conviction carried a potential imprisonment of at least one year. Id. § 1227(a)(2)(A)(i). A noncitizen is removable if they commit two CIMTs not arising out of a single scheme of criminal misconduct at any point after admission. Id. § 1227(a)(2)(A)(ii). ↑
  4.  142 S. Ct. 2228 (2022). ↑
  5.  Id. at 2242. ↑
  6.  See, e.g., La. Stat. Ann. § 40:1061 (2023). ↑
  7.  See, e.g., West Virginia Gov. Jim Justice Signs Abortion Ban Into Law, Politico (Sept. 16, 2022, 2:17 PM), https://www.politico.com/news/2022/09/16/west-virginia-jim-justice-abort‌ion-ban-law-00057255 [https://perma.cc/7GN9-UWKV]. ↑
  8.  Ark. Code Ann. §§ 5-61-303 to 5-61-304 (Supp. 2023). ↑
  9.  Rebecca Boone & Claire Rush, Post-Roe, States Struggle With Conflicting Abortion Bans, AP News (July 1, 2022, 6:41 PM), https://apnews.com/article/abortion-state-governments-idaho-afa15cab32e3f46524997e0255fe8c8f [https://perma.cc/9NKK-JGXC]. ↑
  10.  Compare Exec. Order No. 14,067, 87 C.F.R. 42053 (July 8, 2022) (stating that abortion is “essential to justice, equality, and our health, safety, and progress as a Nation” and directing the Secretary of Health and Human Services to protect and expand access to abortion care), with Tex. Health & Safety Code Ann. § 170A.004 (West 2022) (classifying abortion as a felony of the first or second degree). A similar conflict is currently being litigated in the U.S. Court of Appeals for the Ninth Circuit with respect to Idaho’s abortion law. United States v. Idaho, No. 23-35440, 2023 WL 6308107, at *1 (9th Cir. Sept. 28, 2023). The federal government argued that federal law could require abortions which are not included under the State’s life of the mother exception. Id. at *3. The Ninth Circuit found in favor of the State, overturning a district court decision and granting a stay of the preliminary injunction on Idaho’s abortion law. Id. at *1, *7. The Ninth Circuit panel stated that the state law did not restrict abortions required by federal law. Id. at *5. The Ninth Circuit later vacated the order and agreed to rehear the matter en banc. See United States v. Idaho, 82 F.4th 1296 (9th Cir. 2023). An en banc panel subsequently denied Idaho’s motion to stay the injunction pending appeal. See United States v. Idaho, 2023 U.S. App. LEXIS 30135 (9th Cir. Nov. 13, 2023). ↑
  11.  As of sixty days after Dobbs was passed, sixteen states had “passed legislation to protect access to abortion before and in response to Dobbs.” Larissa Jimenez, 60 Days After Dobbs: State Legal Developments on Abortion,

    Brennan Ctr. for Just. (Aug. 24, 2022), https://www.brennancenter.org/our-work/research-reports/60-days-after-dobbs-state-legal-de‌velopments-abortion [https://perma.cc/VB7W-SVPY]. ↑

  12.  Immigration attorneys and advocates published an open letter to the Department of Homeland Security (“DHS”) after Dobbs, requesting that DHS clarify that abortion-related convictions would not be used as a basis for immigration enforcement actions. Letter from Advocs. for Youth et al. to Alejandro N. Mayorkas, Sec’y, U.S. Dep’t of Homeland Sec. (July 19, 2022), https://www.americanimmigrationcouncil.org/sites/default/‌files/research/coalition‌_ur‌ges_dhs_to_protect_the_right_to_abortion_after_dobbs.pdf [https://perma.cc/5LAJ-SX‌HP]. ↑
  13.  Immigration Act of 1891, Pub. L. No. 51-551, § 1, 26 Stat. 1084. ↑
  14.  Immigration Act of 1917, Pub. L. No. 64-301, § 19, 39 Stat. 874. ↑
  15.  See Jordan v. De George, 341 U.S. 223, 234 (1951) (Jackson, J., dissenting) (“Congress did not see fit to state what meaning it attributes to the phrase ‘crime involving moral turpitude.’”); see also De Leon v. Lynch, 808 F.3d 1224, 1228 (10th Cir. 2015) (“The phrase ‘crime involving moral turpitude’ is not defined in the INA; instead, its contours have been shaped through interpretation and application by the Attorney General, the Board, and federal courts. It is ‘perhaps the quintessential example of an ambiguous phrase.’”). ↑

  16.  Matter of Silva-Trevino, 26 I. & N. Dec. 826, 833 (B.I.A. 2016) (citation omitted) (interim decision). ↑

Collateral Effects of Habeas Retrogression

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). ↑

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