The Harmless Writ: whether you get due process depends on how guilty you are

In The Federalist, Alexander Hamilton argued that the Constitution should provide for the writ [of habeas corpus] “in the most ample manner” because it served as a bulwark against “arbitrary methods of prosecuting pretended offenses [and] arbitrary punishments upon arbitrary convictions.” The drafters of the Constitution imbedded it in Article I before adopting the Bill of Rights.

The Supreme Court has attested to the writ’s significance on many occasions. At different times, the Court has declared that habeas corpus is intended “to liberate an individual from unlawful imprisonment,” a procedure for “securing to the petitioners their constitutional rights,” and “the best and only sufficient defense of personal freedom,” which, if withdrawn, “risk[s] injury to an important interest in human liberty.”

Most recently, the Court described the writ of habeas corpus as a “vital instrument” to securing “freedom from unlawful restraint,” such freedom being “a fundamental precept of liberty.”

Taken, once again, from this law review article [PDF]. To those who don’t know, a petition for writ of habeas corpus is a post-conviction1 avenue to challenge the legality of their incarceration.

As the legendary Judge Weinstein quoted in his report on 500 habeas corpus cases:

The writ tests only whether a prisoner has been accorded due process, not whether he is guilty.

Because, at one point in time, in this country and this legal system, we valued the process as much as the outcome. We placed emphasis on doing things correctly, because we possibly recognized that we all weren’t so blissfully immune from the powerful crosshairs of a runaway government. To that end, judges across the various states and in the federal system were given broad authority to hear these “habeas petitions” challenging the legality of convictions.

Concomitantly, they were given broad powers to fashion remedies, because the harm caused by a violation of a Constitutional right must be made whole as completely as possible.

In Hilton v. Braunskill, Chief Justice Rehnquist wrote

Federal habeas corpus practice, as reflected by the decisions of this Court, indicates that a court has broad discretion in conditioning a judgment granting habeas relief.

So, for example:

Riggs v. Fairman, 399 F.3d 1179 (9th Cir.2005), a district court has considerable discretion in fashioning a remedy tailored to the injury suffered from the constitutional violation, and a court must consider the unique facts and circumstances of a particular case; Jeanty v. Bulger, 204 F.Supp.2d 1366 (S.D.Fla.2002), a court granting a writ of habeas corpus may also issue an injunction in aid of the writ; Gall v. Parker, 231 F.3d 265 (6th Cir.2000), a habeas court has broad discretion in fashioning habeas relief; Hannon v. Maschner, 981 F.2d 1142 (10th Cir.1992), a district court may exercise its broad authority in habeas cases to grant any relief it deems necessary, including 638*638 permanent discharge of a successful habeas petitioner; Hilton v. Braunskill, 481 U.S. 770, 107 S.Ct. 2113, 95 L.Ed.2d 724 (1987), federal courts have largest power to control and direct the form of judgment entered in cases brought up on habeas corpus; Jean v. Meissner, 90 F.R.D. 658 (S.D.Fla.1981), where appropriate, a habeas court may grant injunctive, declaratory and mandatory relief; Hobson v. Murray, 485 F.Supp. 1340 (E.D.Va.1980), federal courts are not narrowly restricted in fashioning an appropriate remedy on granting petition for writ of federal habeas corpus relief but instead, the court is charged to dispose of the matter as law and justice require; U.S. ex. rel. Marrero v. Warden, Lewisburg Penitentiary, 483 F.2d 656 (3rd Cir.1973), immediate and unconditional release is not the only remedy available in a habeas corpus proceeding.

Gentry v. Deuth. In Connecticut, this power, which derives from the habeas corpus court being a “court of equity” is identical to the power of the federal court. There are a set of statutes in this state, duly enacted by the legislature, that create special “habeas corpus courts”2 In CT, the legislature deemed it efficient to consolidate all these petitions in one courthouse in Rockville and assign 2-3 judges there to hear and dispose of all these cases. When I say “habeas court”, I’m referring to a judge assigned to sit as a habeas judge by the administration of the judicial branch. Once a judge has been administratively assigned to assume that role for a period of 2 or 3 years3, the judge takes on the duties, responsibilities and powers of the habeas corpus court which are given to it either by the common law (all the quotes above) or by statute, which states:

(a) The court or judge hearing any habeas corpus shall proceed in a summary way to determine the facts and issues of the case, by hearing the testimony and arguments in the case, and shall inquire fully into the cause of imprisonment and thereupon dispose of the case as law and justice require.

Emphasis added by me. Because as of today, that bolded portion is functionally excised from the law books and placed in the metaphorical trash heap which the CT Supreme Court is doing a fine job of filling with your and my individual rights and liberties.

In a decision today [PDF] in H.P.T. v. Commissioner that is one in a long line of utterly confused and confusing decisions about what, exactly, one must do in order to correct a Constitutional wrong when it comes to bad advice given by an individual’s lawyer, the court effectively divests these “habeas corpus” courts of their long-standing and inherent power to fashion the appropriate remedy.

This supreme court, for some reason, has gotten it into its head for over a decade now, that impartial habeas courts whose job is to determine whether a person has been “accorded due process”, not to sit and once again decide “whether he is guilty” are the wrong jurists to determine just what is to be done once they have decided that there was no due process.

A habeas court, generally, decides three things:

  1. Was there a Constitutional violation?
  2. Was there harm to the individual?
  3. How do we fix it?

There is absolutely no precedent whatsoever for questions 1 & 2 to be decided by one court and question 3 to be answered by another court altogether. And yet here we are in CT where this is precisely what has happened.

Here’s what the court wrote:

the proper remedy remains the same in most cases, namely, remanding the case to the trial court, which is vested with the discretion to [return the individual to pre-harm status]

Except, as we have seen just above, it is the habeas court, not the trial court that is “vested with the discretion”.

In order for its proposition, this opinion in H.P.T. cites only two cases4. One is its own opinion from last year in Ebron v. Commissioner, which is based primarily on a (deliberate?) misreading of Lafler and Frye and Lafler itself. The problem is that the SCOTUS cases of Lafler and Frye deal with setups where the trial court and the habeas court are one and the same, which is clearly not the scenario here in Connecticut.

So, in this opinion today, the CT Supreme Court has, without being asked to or without any due consideration, effectively repealed a statute duly passed by the State legislature. It has done so for one reason and one reason only:

In our view, the determination of the appropriate remedy will, in most cases, more properly be made by the trial court than by the habeas court because the former generally will have greater experience than the latter in crafting criminal sentences and, in some cases, may have access to information about the petitioner and the crime that is not available to the habeas court.

In other words, because the trial judge will know if he’s a really bad guy who needs to be locked up. The beauty of having an independent court not only evaluate the harm, but then also direct the remedy is that by virtue of being independent, the court has no stake in the game. It is not being asked to second guess or explain its own decision making.

Remember that the trial judge is the one that presided over the case when it was initially pending. This is the judge who may have ruled on discovery requests and, more importantly, conveyed plea bargain offers to the individual’s lawyer. This is the judge who was informed of the vagaries of the case and the strength of the evidence of guilt, or lack thereof. This is a judge who has formed an opinion of the individual’s guilt.

The supreme court says today, in stark contrast to centuries of habeas corpus jurisprudence, that guilt is relevant to determining whether an individual should be afforded the protection of the Constitution against illegal convictions.

The court affirms that as long as someone is guilty, it doesn’t matter how that conviction was obtained.

A Constitutional harm is being weighed not against the principle that was violated or the actual harm caused to an individual, but against the character of that person.

What this decision today does, is give rise to a scenario where questions 1 and 2 above may be answered in the affirmative and question 3 may be answered by a judge with an emotional stake in the outcome who might proffer a middle finger by way of remedy.

We may end up with a situation with absolutely no relief for a proven Constitutional violation. A harm without a remedy is no harm at all.

This court has managed to take the “best and only sufficient defense of personal freedom” and turn it into a harmless piece of paper.

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  1. Meaning after someone has been convicted of and sentenced for a crime. Typically the person has also lost their direct appeal.
  2. They’re regular Superior Court judges who do full-time habeas corpus work. These judges routinely get transferred to criminal dockets when they start granting too many petitions.
  3. See second part of footnote 2 above for caveat.
  4. By contrast, some might point out that this very blog post has more citations to well-established case law than the opinion of the CT supreme court in question. But that won’t be me. I have modesty.

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