Habeas is an anomaly in the law of federal courts. For decades now, state courts have solely and finally resolved federal issues with minimal federal superintendency. For nearly as long, however, the federal writ of habeas corpus has not adhered to this general paradigm and has been interpreted to permit federal courts to revisit anew federal issues litigated before state courts in the course of state criminal prosecutions. Indeed, the special treatment of habeas is so longstanding that it is a near-axiomatic contour in the fabric of federal courts law. This Article questions that axiom. Starting from a premise placing high value on theoretical consistency (a premise subject to legitimate criticism), I examine the functional and theoretical differences between the paradigm that typically governs adjudication of federal issues in the state courts (which I dub the “paradigmatic construct”) and the paradigm that applies to adjudication of federal issues in state criminal prosecutions and in subsequent, federal habeas corpus proceedings (the “habeas construct”). This deconstructive exercise reveals that these two constructs are animated by fundamentally different views of the interrelationship of the state and federal judiciaries. Starting from the further premise that the paradigmatic construct is the appropriate baseline (a premise also subject to debate), I then examine two very different approaches to eliminate this theoretical discord. The less aggressive approach attempts to cure the discord by providing a new theoretical basis for habeas that justifies its current contours. The more aggressive approach attempts to cure the discord by reshaping the contours of the writ to treat adjudications of federal issues in the habeas construct more like they are treated under the paradigmatic construct.
On December 24, 2003, the Governor of Florida, Jeb Bush, attended a special Christmas Mass at a state correctional facility about forty miles north of Gainesville, Florida. More than just celebrating the Christian holiday with the prison’s almost 800 inmates, Governor Bush was attending a milestone in modern American criminal rehabilitation. He was there to dedicate the Lawtey Correctional Institution (“Lawtey”) as the nation’s first completely faith-based prison.
The conversion of Lawtey to a faith-based format is one of the most recent examples of the growing political trend to allow more open participation of religious organizations in government supported and funded social welfare programs. This trend is in line with the much talked about charitable choice provision, which allows religious groups access to federal welfare funds without having to establish a secular service provider component. The provision also allows religious groups to incorporate their religious message into social programs and to consider religion when hiring and disciplining employees.
The traditional Fourth Amendment search-and-seizure doctrine was fine for an age of flintlocks, and maybe even for an age of automatic weapons. In the past, ordinary crime, even heinous crime, almost always had a limited impact. But one must wonder whether our traditional constitutional doctrine, without more, is up to the task of governing all searches and seizures in an age of weapons of mass destruction and potential terrorism. This Article explores this question and concludes that traditional doctrine falls short in an age of threats unprecedented in their potential for harm. We propose that, because of the potential harms posed by catastrophic threats, courts should come to recognize that a fresh look at the probable-cause standard is necessary. We contend that, if properly conducted, largescale searches undertaken to prevent horrific potential harms may be constitutionally sound even when the search of each particular location does not satisfy the traditional probable-cause requirement that such search have a “fair probability” or a “substantial chance” of yielding the object sought. As we discuss at more length below, established Fourth Amendment doctrine requires “individualized suspicion” for each person or place to be searched. We argue, however, that even where that element is lacking, the government’s search for a weapon of mass destruction4 may be permissible if the Supreme Court’s “special needs” exception to the probable-cause requirement is extended. Specifically, such a search should be permissible if (1) the search is justified by special needs that go beyond routine police functions; (2) the search program is reasonably designed to be as effective as is practical with the aim of preventing or minimizing harm to the public; (3) the procedure will give law enforcement constrained discretion in executing the search, and the search is not discriminatory in application; and (4) weighing the total circumstances, the balance between the governmental and societal need to search, weighed against the infringed-upon privacy of individuals, favors search.
On February 19, 2003, a court in Hamburg, Germany convicted Moroccan national Mounir Motassadeq of over 3000 counts of accessory to murder in connection with the attacks of September 11, 2001. Motassadeq stood accused of being a member of the Hamburg terrorist cell that plotted and executed the hijacking of U.S. aircraft and subsequent attacks on the World Trade Center and Pentagon. He was convicted in a Hamburg higher regional court and sentenced to the maximum term of fifteen years in prison. Motassadeq’s was the first conviction related to the September 11 attacks in any jurisdiction.
For nearly two centuries, legal historians have believed that the medieval English jury differed fundamentally from the modern jury. Its members hailed from the immediate vicinity of the dispute and came to trial already informed about the facts. Jurors based their verdicts on information they actively gathered in anticipation of trial or which they learned by living in small, tight-knit communities where rumor, gossip, and local courts kept everyone informed about their neighbors’ affairs. Interested parties might also approach jurors out of court to relate their side of the case. Witness testimony in court was thus unnecessary. The jurors themselves were considered the witnesses – not necessarily eyewitnesses, but witnesses in the sense that they reported facts to the judges. They were self-informing; they “came to court more to speak than to listen.”
New crimes require new thinking about regulation. Because of computerization and globalization, today’s world faces new crimes and new ways of committing old crimes. Because of the interconnectedness of our global financial markets, this evolving criminal activity has unprecedented power to wreak havoc on every aspect of modern life. Law enforcement has no choice but to respond effectively.
One aspect of this new thinking is revising our concept of crime. Complex, economic wrongdoing is difficult to categorize as criminal primarily because it is enormously difficult to prove the high level of mens rea traditionally and appropriately required in criminal law. Proving this requisite mental state by the heightened burden required in criminal cases is even more difficult. Moreover, even when proof of criminal intent beyond a reasonable doubt is possible, conducting the investigation and proving a case by these standards is so expensive and time-intensive for both the executive and judicial branches that the costs often outweigh any benefit achieved. Lastly, imposing the criminal sanction of imprisonment on defendants whose wrongdoing, however destructive to society, may be malum prohibitum, is morally and practically questionable for a criminal justice system and is often economically inefficient.