Academic

Wolitz on the Right to Clear One's Name

By Lawrence Solum

David Wolitz (Georgetown University Law Center) has posted The Stigma of Conviction: Coram Nobis, Civil Disabilities, and the Right to Clear One's Name (Brigham Young University Law Review, Forthcoming, Georgetown Public Law Research) on SSRN. Here is the abstract:

In the 1954 case of United States v. Morgan, the Supreme Court revived the ancient writ of coram nobis by making it the sole mechanism for post-incarceration judicial review of federal convictions. It appeared that coram nobis was well on its way to taking its place as a vital part of the American system of collateral review. Where the writ of habeas corpus provided unlawfully convicted prisoners with a way to challenge their conviction, coram nobis offered a similar avenue of relief for those who were no longer in federal custody. But the promise of modern coram nobis has been held in check by a restrictive doctrine known as the civil disabilities test. In most federal circuits today, a coram nobis petitioner must show that he or she is suffering a distinct and ongoing legal harm ? a 'civil disability' ? before a court will review the underlying conviction. The Seventh Circuit, Judge Easterbrook in particular, led the way in creating the now-prevalent civil disabilities test by arguing that such a test is necessary to promote the values of finality and judicial economy. But the test means that many people who were unlawfully and erroneously convicted never have a chance to challenge their convictions in court. This Article argues that the civil disabilities test is inconsistent with the essential nature and important function of post-Morgan coram nobis relief. The test does very little to promote the values of finality and judicial economy, and its application leads to grave departures from the fundamental norm of accuracy. Moreover, the test disregards the devastating reputational, professional, and social consequences of conviction. Those who are stigmatized by an unlawful conviction should be able to obtain collateral relief. And coram nobis, which can provide such relief, should not be weighed down by the overly restrictive civil disabilities test.

Full post as published by Legal Theory Blog on July 31, 2009 (boomark / email).