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The writ of habeas corpus is the principal means by which state prisoners, many on death row, attack the constitutionality of their conviction in federal courts. In The Body and the State, Cary Federman contends that habeas corpus is more than just a get-out-of-jail-free card—it gives death row inmates a constitutional means of overturning a jury’s mistaken determination of guilt. Tracing the history of the writ since 1789, Federman examines its influence on federal-state relations and argues that habeas corpus petitions turn legal language upside down, threatening the states’ sovereign judgment to convict and execute criminals as well as upsetting the discourse, created by the Supreme Court, that the federal-state relationship ought not be disturbed by convicted criminals making habeas corpus appeals. He pays particular attention to the changes in the discourse over federalism and capital punishment that have restricted the writ’s application over time.
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The Body and the State
SUNY series in American Constitutionalism
Robert J. Spitzer, editor
THE BODY AND THE STATE 찞 Habeas Corpus and American Jurisprudence
CARY FEDERMAN
S TAT E U N I V E R S I T Y O F N E W Y O R K P R E S S
Published by State University of New York Press, Albany © 2006 State University of New York All rights reserved Printed in the United States of America No part of this book may be used or reproduced in any manner whatsoever without written permission. No part of this book may be stored in a retrieval system or transmitted in any form or by any means including electronic, electrostatic, magnetic tape, mechanical, photocopying, recording, or otherwise without the prior permission in writing of the publisher. For information, address State University of New York Press, 194 Washington Avenue, Suite 305, Albany, NY 12210-2384 Production by Christine Hamel Marketing by Susan Petrie Library of Congress Cataloging-in-Publication Data Federman, Cary, 1963– The body and the state : habeas corpus and American jurisprudence / Cary Federman. p. cm. — (SUNY series in American constitutionalism) Includes bibliographical references and index. ISBN 0-7914-6703-1 (hardcover : alk. paper) 1. Habeas corpus—United States—History. 2. Habeas corpus—United States. I. Title. II. Series. KF9011.F43 2006 345.73'056—dc22 2005012801 ISBN-13: 978-0-7914-6703-9 (hardcover : alk. paper) 10 9 8 7 6 5 4 3 2 1
For Masha, Mnogo te Volim
Sometimes it seems that there is only one story in American legal thought and only one problem. The story is the story of formalism and the problem is the problem of the subject. The story of formalism is that it never deals with the problem of the subject. The problem of the subject is that it’s never been part of the story. Until Now. —Pierre Schlag, “Beyond Critique: Law, Culture, and the Politics of Form”
Contents
Chronology of Habeas Corpus
ix
Introduction: Understanding Habeas Corpus
1
1
Habeas Corpus in the New American State, 1789–1915
21
2
Bodily Inventions: The Habeas Petitioner and the Corporation, 1886
45
Habeas Corpus as Counternarrative: The Rise of Due Process, 1923–1953
63
4
Confessions and the Narratives of Justice, 1963–1979
95
5
Future Dangerousness and Habeas Corpus, 1982–2002
125
6
Habeas Corpus and the Narratives of Terrorism, 1996–2002
157
7
Conclusion
185
3
Notes
191
Index
235
vii
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Chronology of Habeas Corpus
Definition: Literally, “you have the body.” A writ issued by a court to inquire into whether a person is lawfu