America’s Trumpiest court lights the writ of habeas corpus on fire in Crawford v. Cain

Federal law explicitly authorizes federal courts to review convictions and sentences handed down by state courts, and to invalidate them if a prisoner is held “in custody in violation of the Constitution or laws or treaties of the United States.”

Last Thursday, however, a far-right panel of the United States Court of Appeals for the Fifth Circuit effectively eliminated state prisoners’ right to seek what is known as a “writ of habeas corpus” when they are imprisoned in violation of the Constitution or federal law, except in cases of “factual innocence.”

Among other things, this means that someone who is “factually guilty” of an unconstitutional crime — such as violating a Jim Crow law or a law prohibiting individuals from criticizing the president — would be stripped of their habeas rights in federal court. It could also potentially enable abusive conduct by police and prosecutors, such as coerced confessions or warrantless searches, by removing nearly all federal supervision of states that overlook such violations.

Judge Andrew Oldham’s decision in Crawford v. Cain is completely lawless. It finds this novel requirement that an unconstitutional or illegal conviction or sentence must stand, unless the prisoner shows they are innocent, within a federal statute that states that federal courts hearing habeas cases “shall summarily hear and determine the facts, and dispose of the matter as law and justice require.” Oldham, along with the two other Republican-appointed judges who joined his opinion, claims that only factual innocence “satisfies the law-and-justice requirement.”

Oldham’s opinion is only 19 pages, and he devotes only about six of them to this argument that the vague words “as law and justice require” eliminate federal habeas rights in nearly all cases. He cites no case law that even plausibly supports his argument, although he does quote from two recent Supreme Court decisions that state that habeas should only be available when “law and justice require” it to be available.

Much of his argument rests on an essay published in 1970 by federal Judge Henry Friendly, which criticized the Supreme Court for not imposing a “colorable claim of innocence” requirement on habeas petitioners. The primary source that Oldham relies on, in other words, is an opinion piece written by a judge who died in 1986, which doesn’t claim that Oldham’s rule is the law, but that it should be.

That’s not how judicial opinions and the law work. As the Supreme Court said in Marbury v. Madison (1803), “it is emphatically the duty of the Judicial Department to say what the law is,” not what Andy Oldham thinks that the law should be. And while federal law does impose many restrictions on state prisoners seeking habeas relief in federal court, it does not impose Oldham’s made-up “factual innocence” requirement.

Oldham’s made-up rule would lead to absurd and immoral results

Although Oldham barely even attempts to argue that his “factual innocence” requirement is justified by law, he is quite clear-eyed about what his newly made-up rule would mean for state prisoners seeking habeas relief in federal court. Factual innocence, he claims, “is an assertion by the defendant that he did not commit the conduct underlying his conviction,” not that a state prisoner was convicted in violation of the Constitution, or that they received an excessive or unlawful punishment.

Indeed, Oldham states explicitly that a state prisoner may not seek relief in federal court if they were “sentenced under an unconstitutional statute or an erroneous interpretation of a statute.”

This decision isn’t just wrong as a matter of law, it should offend anyone with even the most rudimentary understanding of American history. For nearly a century, Southern US states were ruled by an authoritarian, single-party regime devoted to white supremacy.

Under Oldham’s rule, a Black Mississippian imprisoned for drinking from a whites-only water fountain in the Jim Crow era would have no habeas rights. Oldham’s rule would not permit a Black person to challenge their conviction in federal court on the grounds that Jim Crow laws violate the Constitution. They could only seek habeas relief if they were factually innocent of the “crime” of drinking from the wrong water fountain.

Notably, the Fifth Circuit presides over federal litigation in three former Confederate states: Texas, Louisiana, and Mississippi.

In fairness, even in the absence of federal habeas review, someone convicted in violation of the Constitution would have two potential recourses. One is to challenge their conviction in state court — although that’s unlikely to end well for them in a Jim Crow-like scenario where a state’s judiciary is captured by authoritarians.

The other possible resource is to appeal a state supreme court’s refusal to overturn a conviction or sentence to the US Supreme Court. But the Supreme Court has only nine justices, and it lacks the personnel and the resources to review more than a tiny fraction of state court convictions and other cases brought by state prisoners.

Typically, the Supreme Court receives more than 8,000 petitions asking it to review lower court decisions every year. But it only actually reviews several dozen of these cases.

Indeed, when the Court took the highly unusual step of intervening in Taylor v. Riojas (2020), a case involving a Texas prisoner who was forced to live in horrifying conditions, Justice Samuel Alito wrote a brief opinion complaining that this case, “which turns entirely on an interpretation of the record in one particular case, is a quintessential example of the kind that we almost never review.” Alito warned, with some justification, that his Court would be “swamped” if it paid too much attention even to flagrant violations of prisoners’ rights.

Federal habeas is the process that allows lower federal courts to sniff out cases where a state prisoner was unlawfully convicted or sentenced, and provide them with relief. The existence of federal habeas splits the monumental workload of reviewing every case challenging a state conviction or sentence among hundreds of federal judges, rather than just nine justices.

It also provides an additional layer of review when law enforcement violates procedural requirements such as the rule against coerced confessions, or the rules governing police searches and seizures. Federal habeas discourages state courts from sustaining convictions obtained with illegally seized evidence, for example, because it enables prisoners convicted using such evidence to challenge the conviction outside of the state court system.

And yet, under Oldham’s made-up rule, these judges would be stripped of their authority to toss out even the most egregious state-level convictions. Here are a few examples of habeas cases that would fail under Oldham’s framework:

• Florida passes a law making it a crime to criticize Florida Gov. Ron DeSantis. Pursuant to this law, Florida arrests and imprisons my colleague Zack Beauchamp because Zack published an article likening DeSantis’s policies to those of Hungarian dictator Viktor Orbán. Zack challenges his conviction in the Florida Supreme Court, but that court votes 4-3 to sustain his conviction — with all four of DeSantis’s appointees forming the majority. Under Oldham’s rule, Zack would be unable to seek habeas relief, because he is not factually innocent of the “crime” of criticizing DeSantis.
• Zoe is a 13-year-old middle school student who shoplifts a $1 pack of gum from a convenience store. She is arrested, convicted, and sentenced to death. Under the Supreme Court’s decision in Roper v. Simmons (2005), a juvenile offender may not be sentenced to die. And under the Court’s decision in Kennedy v. Louisiana (2008), death is not a lawful punishment for a relatively minor crime like shoplifting. Nevertheless, Oldham’s rule would prevent Zoe from filing a habeas petition challenging this excessive sentence.
• Paul, who has an intellectual disability, was sentenced to death in 1999. Three years later, in Atkins v. Virginia (2002), the Supreme Court held that “death is not a suitable punishment” for someone with an intellectual disability. Nevertheless, under Oldham’s rule, Paul would not be able to seek habeas relief for an obviously unconstitutional death sentence.
• The governor of Texas, perhaps taking inspiration from former Philippine President Rodrigo Duterte’s drug war, orders state police to raid every Texan’s home to search for illegal drugs. This violates the Fourth Amendment, which requires police to show that they have probable cause to believe that they will find drugs in a particular individual’s home, and to obtain a warrant, before conducting a search. Nevertheless, the Texas Supreme Court — which is made up entirely of members of the governor’s political party — rules that these convictions may not be challenged. Under Oldham’s rule, thousands of individuals who were unlawfully imprisoned because police broke into their homes and found a joint would be stripped of their habeas rights.

Beyond these more eye-popping examples, federal habeas also places subtle pressure on state court judges to honor the Constitution in more routine cases. In most of the country, state courts are no less capable of protecting criminal defendants’ rights than federal courts are. But state court judges, like anyone else who has ever done an important job with a supervisor looking over their shoulder, are more likely to act cautiously if they know that convictions and sentences are subject to one more layer of judicial oversight.

Again, the absence of federal habeas review does not preclude state prisoners from challenging their conviction in state courts, or from seeking relief in the Supreme Court. But the United States has a long history of state governments, including their courts, being captured by authoritarian movements that openly flout individual constitutional rights. And the Supreme Court simply is not capable of reviewing more than a vanishingly small fraction of state court convictions.

The right to challenge a state conviction in federal court — a right that, while limited, is explicitly authorized by a federal statute — is one of many safeguards against localized authoritarianism and illegal abuse of power by the criminal justice system. Oldham’s opinion would nearly eliminate that safeguard. And it would do so based on the thinnest imaginable legal reasoning.