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Habeas Corpus and the History of the Warren Court
Unformatted Document Text:  court’s province in dictating the pre-arraignment realities of the investigative process. Headed by Harvard law school professors James Vorenberg and Paul Bator, the ALI proposed, with the ABA’s support, an alternative plan that would allow state legislatures to enact a “comprehensive code [that could] evaluate and adjust the various interrelated portions” of criminal processes more faithfully and accurately than the court could. 108 The conservative bent of the ALI was obvious in their proposal that would defer to state legislatures in crafting criminal procedure codes for determining the exact rules for counsel in pre-arraignment circumstances. Even more telling was the fact that Bator was a former Harlan clerk and Vorenberg a former Frankfurter clerk. The stark reality of the power of habeas corpus within this larger context implicated its function as well. Bator had written extensively and persuasively in the Harvard Law Review criticizing Brown v. Allen in 1962. 109 He argued that federal habeas should only be available when the state loses jurisdiction because it failed to provide adequate procedural processes for deciding federal questions. However, federal habeas should not be available simply because a federal court thinks a state’s decision is incorrect. Instead, Bator emphasized the necessity of “finality” in the criminal process so that matters that have been fully and fairly litigated and determined on one level (the state level) are not forced into redundancy at the cost of justice by another court (a federal one). Other members of the ALI, including federal court of appeals judge Henry Friendly, also wrote prestigious and influential articles criticizing the Warren court’s habeas developments. Friendly argued that for all the concern over due process in criminal procedure on the state level, the ultimate decision for granting or denying federal habeas corpus from state prisoners should be the “innocence” of the defendant. If mere technicalities are violative of perceived constitutional rights, they can be addressed by other means besides freeing the guilty. 110 107 Quoted in Powe, 391 108 Ibid., 393 109 Paul M. Bator, “Finality in Criminal Law and Federal Habeas Corpus for State Prisoners,” 76 Harvard Law Review (1962-1963) pp. 441-527 110 Henry Friendly, “Is Innocence Irrelevant? Collateral Attack on Criminal Judgments,” 38 University of Chicago Law Review, (1970) 1067. 49

Authors: Wert, Justin.
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court’s province in dictating the pre-arraignment realities of the investigative process. Headed by
Harvard law school professors James Vorenberg and Paul Bator, the ALI proposed, with the ABA’s
support, an alternative plan that would allow state legislatures to enact a “comprehensive code [that
could] evaluate and adjust the various interrelated portions” of criminal processes more faithfully and
accurately than the court could.
would defer to state legislatures in crafting criminal procedure codes for determining the exact rules for
counsel in pre-arraignment circumstances. Even more telling was the fact that Bator was a former Harlan
clerk and Vorenberg a former Frankfurter clerk.
The stark reality of the power of habeas corpus within this larger context implicated its function
as well. Bator had written extensively and persuasively in the Harvard Law Review criticizing Brown v.
He argued that federal habeas should only be available when the state loses jurisdiction
because it failed to provide adequate procedural processes for deciding federal questions. However,
federal habeas should not be available simply because a federal court thinks a state’s decision is incorrect.
Instead, Bator emphasized the necessity of “finality” in the criminal process so that matters that have been
fully and fairly litigated and determined on one level (the state level) are not forced into redundancy at the
cost of justice by another court (a federal one). Other members of the ALI, including federal court of
appeals judge Henry Friendly, also wrote prestigious and influential articles criticizing the Warren court’s
habeas developments. Friendly argued that for all the concern over due process in criminal procedure on
the state level, the ultimate decision for granting or denying federal habeas corpus from state prisoners
should be the “innocence” of the defendant. If mere technicalities are violative of perceived
constitutional rights, they can be addressed by other means besides freeing the guilty.
107
Quoted in Powe, 391
108
Ibid., 393
109
Paul M. Bator, “Finality in Criminal Law and Federal Habeas Corpus for State Prisoners,” 76 Harvard Law
Review (1962-1963) pp. 441-527
110
Henry Friendly, “Is Innocence Irrelevant? Collateral Attack on Criminal Judgments,” 38 University of Chicago
Law Review, (1970) 1067.
49


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