•  
  •  
 

Authors

Fatma Marouf

Abstract

The Supreme Court has never directly addressed whether, or under what circumstances, a writ of habeas corpus may be used to challenge the conditions of detention, as opposed to the fact or duration of detention. Consequently, a circuit split exists on habeas jurisdiction over conditions claims. The COVID-19 pandemic brought this issue into the spotlight as detained individuals fearing infection, serious illness, and death requested release through habeas petitions around the country. One of the factors that courts considered in deciding whether to exercise habeas jurisdiction was whether alternative remedies exist, through a civil rights or tort-based action. This Article examines that question in depth, focusing specifically on the availability of meaningful alternatives for detained noncitizens. The Article analyzes challenges for noncitizens in bringing civil rights actions under Section 1983 or Bivens, tort actions under the Federal Tort Claims Act and state tort laws, and actions for injunctive relief directly under the Fifth Amendment and under the Administrative Procedure Act. By demonstrating that meaningful alternatives to habeas are often illusory for detained noncitizens, the Article argues that courts should err on the side of exercising habeas jurisdiction instead of making cursory conclusions that alternative remedies can be pursued.

Included in

Law Commons

Share

COinS
 
 

To view the content in your browser, please download Adobe Reader or, alternately,
you may Download the file to your hard drive.

NOTE: The latest versions of Adobe Reader do not support viewing PDF files within Firefox on Mac OS and if you are using a modern (Intel) Mac, there is no official plugin for viewing PDF files within the browser window.