HABEAS corpus: it is, as Alexander Hamilton suggested, the “bulwark” of a Constitution. A habeas petition gives a single federal judge the authority to decide if a prisoner is being held unlawfully and order his release. At Guantánamo, habeas plays a crucial role: it provides the essential means by which the federal judiciary can ensure that innocent people are not mistakenly held, indefinitely, as enemy combatants. This is an example of habeas at its best.

But habeas is also subject to abuse. State prisoners convicted of non-capital offenses file more than 17,000 habeas corpus petitions in federal court each year. Each petition challenges the constitutionality of some aspect of the prisoner’s conviction or sentence, even though that conviction and sentence already have been affirmed by at least one state court, and sometimes several.

Only a tiny fraction of these habeas petitioners — estimated at less than four-tenths of one percent — obtain any kind of relief, which is usually a new trial, sentencing or appeal, after which they may be sent back to prison.

Each petition consumes the scarce resources of both the federal and state governments. Indeed, the never-ending stream of futile petitions suggests that habeas corpus is a wasteful nuisance. By almost any measure, the use, and abuse, of habeas by convicted state prisoners is a failure, one that could corrode one of the most revered pillars of our legal system.  

We need a new approach — one that ensures a more prudent use of habeas in state criminal cases.

Congress should limit habeas review of state criminal cases to two categories in which it actually can do some serious good: capital cases and cases in which the prisoner can produce persuasive new evidence of his innocence. Limiting habeas to these cases will help protect the long-term future of the writ in all of its varied forms.

Throughout our history habeas has served two core functions: during periods of social and political crisis, it ensures that detainees have not been deprived of their liberty in violation of federal law, and it encourages the creation of alternative mechanisms of judicial review that can be used to enforce federal law without the need for case-by-case habeas review. It was used to free those illegally interned during World War II and those unlawfully confined for deportation during the Red Scare.

Habeas was also pressed into service to remedy gross abuses of power in state criminal justice. After the Civil War, habeas helped enforce the new 13th and 14th Amendments by preventing the states from imprisoning freed slaves and Reconstruction officials on trumped-up criminal charges. And in the 1960s, habeas helped ensure that state defendants received the benefit of new and often unpopular federal constitutional rights, including Miranda warnings and the right to appointed counsel. In both eras, habeas often was the only way state criminal defendants could assert their new federal rights in any court.

But today state judges no longer resist the idea that they are required to enforce federal constitutional rights in state criminal cases. Now prisoners in every state can file both an appeal and a post-conviction petition in state court, where alleged violations of federal rights can be reviewed and, if necessary, corrected. Habeas has thus fulfilled its mission: it helped facilitate the move to a criminal justice system in which the supremacy of federal law is unchallenged.

As a result, we no longer need habeas review of routine state criminal cases. One reason the writ is so rarely granted in these cases is that state courts long ago took over the role of reviewing constitutional claims that federal habeas courts once performed.

But the federal courts remain in a 1960s-style habeas rut. They continue to receive tens of thousands of habeas petitions from convicted state prisoners, almost all of which will be denied. Still, the habeas machinery runs on, wasting resources and dissipating respect for the Great Writ, while benefiting almost nobody.

It’s impossible to quantify the burden habeas litigation imposes because no one collects such data and because habeas caseloads vary widely from place to place.

In most cases, a state attorney must respond to the petition and any related motions. Either a federal district judge or magistrate must closely read the petition, consider the governing legal rules and precedents, and draft a formal judicial opinion disposing of the case.

Because more than 90 percent of all non-capital habeas petitions are filed by prisoners acting as their own lawyers, the petitions are often difficult to decipher in the first place. Some federal courts employ clerks or staff lawyers to work almost full-time on habeas cases. Whenever a prisoner tries to appeal the district court’s decision to deny relief, even more judicial review is required.

These costs would be justified if we still relied primarily on habeas to enforce federal constitutional rights in state criminal cases. Liberty often does not come cheap. The problem is that habeas litigation in non-capital state criminal cases is useless and potentially harmful.

Justice William J. Brennan predicted that once state post-conviction remedies became “the rule and not the exception,” federal judicial review of alleged constitutional violations would become unnecessary.

His prediction has long since come true. Federal habeas review of noncapital state criminal cases is unnecessary, because state courts now do the vast majority of that work.

Worse, the misuse of habeas as one more round of appeal in routine state criminal cases will eventually cheapen habeas’s currency. If habeas is chiefly seen as a way for convicted state prisoners to get federal courts to review countless meritless claims, this will diminish public respect for the writ and leave it vulnerable to broader attacks.

We can safely limit the abuse of habeas without eliminating judicial control over the writ and its scope. Should the urgent need for extensive federal oversight of state criminal justice arise again, as it did during the 1960s, the Supreme Court retains the power — under the suspension clause of the Constitution — to overturn any Congressional restrictions and expand the scope of the writ.

So long as reasonable judicial review measures like state post-conviction remain in place, habeas should recede and the burden of ensuring day-to-day Constitutional compliance can rest on these alternatives. In routine state criminal cases, this means allowing state courts, supplemented by Supreme Court certiori review, to ensure compliance. These courts won’t catch every constitutional error, but no judicial review, including habeas, is 100 percent perfect.

EXCEPT in capital cases and in cases in which prisoners can produce persuasive evidence of their innocence, the need for finality must trump our pursuit of perfection. If habeas review were truly costless we could review all criminal cases ad infinitum.  But,  in the real world, judicial review eventually must stop. 

The question is not how much review it might take to achieve perfect compliance with constitutional rules governing criminal cases, because that’s a goal we can’t reach. The question, instead, is how much review makes sense before it becomes a wasteful, possibly harmful, endeavor.

If the federal government wants to take meaningful steps to protect the constitutional rights of criminal defendants and improve the quality of state criminal justice, there is a better way.

Instead of wasting time and money on repetitive habeas review, we might devote our resources to a new Federal Center for Defense Services that would support improved defense representation through grants, research and “best practices” standards.

Improving defense services in the state courts would help prevent constitutional errors, and would do far more good for far more criminal defendants than habeas does or could ever do.

The statistics speak for themselves: habeas review of routine state criminal cases is no longer needed to enforce federal constitutional rights. If the federal courts can’t figure out how to extricate themselves from a situation in which they constantly spin their wheels, Congress should help them out. The future of the Great Writ of habeas corpus may depend on it.