Duke Law Journal, Vol. 78, No. 6 (January 1979), pp. 1307-1351


Discussion concerning the proper scope of federal habeas corpus for state prisoners usually focuses upon the use of the writ as a federal remedy for procedural errors of constitutional magnitude in state criminal trials. Proponents of “liberal” habeas argue that only federal courts can adequately protect the federal procedural rights of state criminal defendants, while critics contend that the states' interest in administering their criminal laws free from federal interference overshadows the asserted benefits. Setting the proper scope of the writ requires a weighing of these competing values.

The focus on procedure is appropriate, because the vast majority of habeas petitions are brought by prisoners convicted of ordinary crimes contending that procedural rules were violated in the process that resulted in their confinements. Sometimes, however, the crime itself is open to constitutional attack. A statute barring the distribution of contraceptives to single, but not to married, persons may be attacked on an equal protection theory. Or a statute punishing a person who maintains a building which is “resorted to by narcotic drug addicts for the purpose of using narcotic drugs and/or which is used for the illegal keeping or selling of the same” may be challenged on the ground that it is too vague to give an individual fair warning of what is proscribed.

This Article will examine another class of substantive attacks on habeas-those asserting that the petitioner's confinement violates his first amendment rights of free speech, press or assembly. The thesis is that when these rights are at issue, the considerations supporting broad habeas are stronger, and the costs of habeas are lower, than when the petitioner is asserting the violation of a federal procedural right. As a result, the necessary choice of values is more easily resolved in favor of broad first amendment habeas than it is for broad procedural habeas.

Essential to this analysis is the premise that a habeas court may legitimately distinguish among constitutional rights. This premise rests on the functional differences between habeas proceedings and appellate review, where such distinctions among rights are not permissible. The reasoning underlying the premise is developed in Part I. Part II describes the justifications for according distinctive and liberal treatment to free speech claims. Part III considers some of the possible consequences of drawing the suggested distinction between first amendment and procedural habeas. It is suggested that different rules might govern the cognizability of issues in habeas, as well as governing other aspects of habeas relief, such as custody, exhaustion of state remedies, prospective or retroactive application of new decisions, and procedural default. The proper approach to overbreadth review in habeas is also considered.