The New Negative Habeas Equity


Lee Kovarsky

Harvard Law Review


      A federal statute restricts the habeas corpus remedy, but do federal judges also have equitable discretion to deny relief to unlawfully detained prisoners? Over the last several terms, the Supreme Court has begun to embrace this novel, ambitious view of habeas law. Although the Court has long cited what I call “negative” equity as a source of authority to devise its own limits on habeas relief, it had never—until recently—suggested that lower courts have free-floating discretion to deny relief to which prisoners are otherwise entitled.

      This Essay, which consists of three parts, considers and refutes the “new negative equity.” In Part I, I set forth the older version of negative equity and then describe the recent departure therefrom.  In Part II, I explain why the new negative equity doesn’t follow from any text-centered approach to statutory interpretation—relying substantially on context and drawing heavily from a statutory history that decisional law and academic discourse have thus far neglected. In Part III, I focus on the most troubling register of the new negative habeas equity, which involves a rule against habeas relief for those who are not “factually innocent.”

      Equitable power to refuse relief might be consistent with “comity, finality, and federalism,” as it were, but orphaned policy preferences are not law. Under the text-centered approach to law endorsed by most who favor habeas restrictions, such a practice is impossible to justify. Although no interpreter can be perfectly certain of statutory meaning, the new negative equity is both inconsistent with habeas history and a least-plausible reading of the modern statute.

Full Citation

Lee Kovarsky, The New Negative Habeas Equity, __ Harvard Law Review __ (2024).