Thursday, December 18, 2014

Antebellum Texas judges enjoyed sweeping habeas corpus authority

Grits recently opined that, over the long arc of history, nearly all legislative involvement in habeas corpus has been to restrict judicial authority, with the creation of Texas' new junk science writ in 2013 cutting against the grain. To see how much habeas corpus authority has been restricted over the years in Texas, I spent a little time looking through the 1856 Texas Code of Criminal Procedure (pdf), which I found online at the Texas Legislative Reference Library. Compare it with Chapter 11 of today's Code of Criminal Procedure which covers habeas corpus and one quickly realizes that Texas judges' authority in this area has been radically reduced since those antebellum years following statehood.

Today, Texas trial judges are mere fact finders for the Court of Criminal Appeals in the habeas corpus process.  The CCA calls all the shots and their actions are highly limited by statute, mainly to post-conviction reviews, with extremely limited authority to grant relief and a process largely slanted against applicants who are overwhelmingly denied. By contrast, the 1856 Code of Criminal Procedure created by Texas' founding fathers gave Supreme Court judges (criminal wasn't split off until after the Civil War) as well as district judges far more sweeping habeas authority than they enjoy today. Here are some excerpts which will give you a sense:
High court authority
Article 58, 1856 Texas Code of Criminal Procedure
The Supreme Court, or either of the Judges thereof, has original jurisdiction to enquire into the cause of the detention of persons imprisoned or detained in custody, and for this purpose may issue the writ of habeas corpus, and upon the return thereof may remand such person to custody, admit to bail, or discharge the person imprisoned or detained, as the law and the nature of the case may require

District Judges could issue writ
Article 60, 1856 Texas Code of Criminal Procedure
Each District Judge has power to issue the writ of habeas corpus, and have brought before him any person imprisoned or otherwise illegally detained in custody, in any county, whether within or out of his district, and make such order on the return of the writ as the law and the facts of the case may require, whether the person detained has been indicted or not, under the restrictions herein prescribed.

Construed in favor of defendant
Article 121, 1856 Texas Code of Criminal Procedure
Every provision relating to the writ of Habeas Corpus shall be most favorably construed in order to give effect to the remedy, and to protect the rights of the person seeking relief under it.

Duty to grant
Article 122, 1856 Texas Code of Criminal Procedure
The Supreme Court, or either of the Judges of the District Courts, or either of the Judges, have power to issue the writ of Habeas Corpus and it is their duty, upon proper application, to grant the writ under the rules herein prescribed.

Judges could initiate process
Article 132, 1856 Texas Code of Criminal Procedure
A Judge of the District Court who has knowledge that any person is illegally confined or restrained in his liberty within his district, may issue the writ of Habeas Corpus without any application being made for same.
The authors of Texas' 1856 Code of Criminal Procedure clearly envisioned activist judges operating independently via habeas corpus to provide checks and balances to inevitable state overreach, in the courageous tradition of Texas Supreme Court Chief Justice George F. Moore. By comparison, today judges' role in habeas review is largely technocratic save for a small minority of cases at the CCA level. Texas judges in 1856 enjoyed sweeping powers to review and end unjust incarceration which appear breathtaking by comparison with today's puny judicial analogues.

See related Grits posts on Texas habeas history:


Jefe said...

Good history lesson.

Soronel Haetir said...

I would certainly prefer if modern habeas were done in a manner that was a search for the truth of what happened in the underlying criminal case rather than an examination of what happened within the judicial system; but I don't see such a change coming about in my lifetime.

Gritsforbreakfast said...

Soronel, you're viewing this through a narrow and quite-modern ideological lens which has colored your perception of history. There was never some golden age when habeas was about only guilt/innocence, not process. Habeas has always, mainly, been about judges defending the process.

See the item on Justice George F. Moore linked here and above, in which he opined, "Better it would be for the prisoners who are in custody, though doubly guilty, beyond all that is charged against them, to go unwhipped of justice, than for the civil authorities to be subordinated to military control and made dependent on the consent of the latter for the discharge of its functions." Guilty or not wasn't the issue; he cared about process, or as you put it, "what happened within the judicial system."

Soronel Haetir said...

No, no, I'm not talking about any historical antecedence. I am talking about what I would like to see habeas be. IMO innocence of the underlying charge (or the lack of any charges at all as practiced at Gitmo for example) should be the reason for habeas to exist. The things modern habeas has become concerned with -- lack of capacity on the part of the offender or how horrible their childhood was -- simply don't interest me.

Gritsforbreakfast said...

Ah, well we can disagree on the normative question, Soronel, I just wanted to ensure the historical element was characterized correctly. Limiting habeas to guilt/innocence would be yet another legislative reduction of/attack on judicial powers embodied in the Great Writ. On that policy prescription, we disagree. I'm for the judiciary reclaiming much of their lost habeas authority, not limiting it further.

Also, I still think your views on this seem too colored by the death penalty lens ("lack of capacity on the part of the offender or how horrible their childhood was") in ways which misapprehend the contents of most colorable habeas claims, at least from my own non-lawyerly observation. Death penalty cases make up, at most, a few dozen of the thousands of habeas writs the CCA reviews each year. Most writs have little to do with your stereotyped caricatures about having sympathy for the D's horrible childhood, etc.. Go read a few weeks worth of CCA hand down lists (save time by focusing on opinions where relief was granted, the denials are almost all boilerplate). You'll find that they're considering a much wider range of quite-valid issues than you're portraying.

Soronel Haetir said...

I would agree that my views about execution color much of my outlook on a correctly functioning judiciary, but I would also have to so that in what I see as a properly working judiciary most offenders would likely be facing that possibility with many of them even facing it as a probability.

I have made no secret of the fact that I believe execution to be the appropriate outcome for crimes more serious than thefts of a couple hundred dollars and that I would not be troubled by that outcome until talking about crimes comparable to thefts in the low tens of dollars (and that only for a first offense, my required seriousness factor rapidly goes down for repeat criminal transgressions).

With such a system in place I fully admit that a system for serious examination of whether charges were proven with competent evidence would be necessary, even critical.

Setting all that aside I do fully agree that our current system of habeas being almost entirely limited to procedural matters is quite ridiculous. I just don't believe that making it a more free-wheeling process without some other tradeoff would actually serve to bring any respect to the judiciary.

The tradeoff I propose (ditching procedural gotchas for a searching examination of whether the defendant-now-convict actually committed the charged offenses) would, I believe, do a far better job of sifting out those few unlucky innocents who are caught in the system. And those are really the only convicts I have any concern for whatsoever.

Military habeas (at least when talking about detainees who are either civilians of the detaining power or foreigners regardless of military status) is, I believe, an entirely different matter as there you are generally talking about those who are not convicts at all. At least not convicts from a court I would recognize as having jurisdiction. I actually believe that to be exactly the habeas power mandated by the federal constitution, but what is normally exercised as habeas review is a creature of statute instead and need not be available at all.

Anonymous said...

If the process is not our main focus then far too many will be convicted in error and likely never recieve any process of review. Search for truth is a grand goal but in a world where police are rarely punished for being untruthful and prosecutors sponsor known liars as witnesses, review of the process is as important as the search for truth.

Anonymous said...

A different world where travel and communications took days and weeks. Society as well as the entire justice system was so different then you really can't compare to today. Defendants convicted of capital crimes were also normally executed within 30 days of pronouncing sentence. Don't think we want to go back to those times.

Gritsforbreakfast said...

@10:24, How would travel times influence what authority judges should have to review detention? I don't see the connection. These are normative, not logistical questions.

Gritsforbreakfast said...

@Soronel, if you believe your revisionist views are "exactly the habeas power mandated by the federal constitution" then you are woefully under-informed.

The US Constitution incorporated English courts' levels of habeas powers at the time the it was approved. For a comprehensive assessment of what those powers were at that exact historical moment (hint: far broader than just guilt/innocence), read this book.

You're entitled to your opinion, but not to rewrite history.

Anonymous said...

After witnessing the Texas version of"due process" as it was afforded a great friend of mine,I hoped the Habeas primary purpose was to preserve the Constitution.Shouldn't it ,by its very nature,reduce constitutional oversight by the lower court?If every government office is willing to bend the constitution just a mite,ultimately it too will not be worth the paper its printed on.As a citizen those are the checks and balances we need ,not whether there is guilt or innocence in every man.