Collateral Effects of Habeas Retrogression

Prisoners in state custody currently have two avenues to challenge violations of their constitutional rights: petitions for habeas corpus and suits under 42 U.S.C. § 1983. Although the two sometimes overlap, courts have held that § 1983 suits are not available to challenge most constitutional violations that could also be addressed through petitions for habeas corpus. This has excised a substantial category of constitutional violations from § 1983’s scope. Most prominently, any constitutional violation that results in incarceration can only be challenged through habeas corpus, and not through § 1983. In his recent concurrence in Edwards v. Vannoy, Justice Gorsuch suggested a new approach for federal courts evaluating habeas petitions by state prisoners. In his reading, the writ of habeas corpus only allows courts to grant prisoners relief if the court that convicted them lacked jurisdiction. To Justice Gorsuch, constitutional violations that result in incarceration are not grounds for habeas relief, or even habeas inquiry. In this Note, I take Justice Gorsuch’s statement to that effect at face value and explore the necessary implications of his newly proposed regime for habeas corpus. I conclude that if habeas corpus were held to not provide an avenue to challenge violations of constitutional rights, the Supreme Court’s cases limiting § 1983 suits by state prisoners because of the availability of habeas relief would implicitly be overruled. I then demonstrate that state prisoners would often benefit from raising their challenges as § 1983 suits rather than in habeas petitions.