D. Guaranteeing procedural perfection.

A fourth possible purpose of collateral review is to guarantee that no one is punished without a perfect trial. "But [the Supreme] Court never has defined the scope of the writ simply by reference to a perceived need to assure that an individual accused of crime is afforded a trial free of constitutional error."⁽⁹⁸⁾

The "perfect trial" view obviously cannot be accepted in its extreme form, for otherwise every case would be infinitely relitigable. If convictions are ever to be final, we must at some point accept the proposition that some claims will no longer be considered. The unanimous decision of the Supreme Court in United States v. Timmreck⁽⁹⁹⁾ establishes this principle unequivocally. In that case, a federal prisoner sought collateral review for what he claimed was an error in applying the Federal Rules of Criminal Procedure. The Court held that, regardless of the merits of his claim, it would not be considered on collateral review. Claims based on rules and statutes will only be so considered when they are fundamental to a fair trial.⁽¹⁰⁰⁾ The question, then, is not whether to accept the possibility of imperfection, but only where to draw the line.

Prior to the 1940's, the line was drawn between claims going to the jurisdiction of the convicting court, which could be asserted on habeas corpus, and those going only to the correctness of the judgment, which could not. The Supreme Court had made quite clear in numerous opinions that the constitutional nature of the claim made no difference.⁽¹⁰¹⁾ The scope of what was considered "jurisdictional" expanded in the early part of this century, until the Court dropped the pretense and, without explanation, began routinely applying the writ to all constitutional claims.⁽¹⁰²⁾

Looking at the claims involved in those early cases, we can see that they all involved fundamental claims, in the sense that the violations in question are of the type which are highly likely to result in the conviction of innocent people. The cases involve mob domination of trials,⁽¹⁰³⁾ denial of counsel to indigent defendants,⁽¹⁰⁴⁾ and racial discrimination in the selection of juries.⁽¹⁰⁵⁾ Because very few federal constitutional protections applied to state trials at that time,⁽¹⁰⁶⁾ it was generally true that all federal constitutional issues in a state criminal case were fundamental issues, with a strong connection to the accurate determination of the guilt or innocence of the accused.

All that changed in the 1960's and 1970's. The Supreme Court created nonfundamental constitutional rules of criminal procedure at a rapid clip. The opening salvo was the exclusionary rule of Mapp v. Ohio,⁽¹⁰⁷⁾ which created a rule which actually served to inhibit the search for truth, rather than enhance it. The barrage continued with Miranda v. Arizona,⁽¹⁰⁸⁾ which took an FBI practice of giving warnings and made it a constitutional mandate, and Griffin v. California,⁽¹⁰⁹⁾ which forbade any mention of the obvious fact that the defendant had not testified. The Supreme Court admitted that the states' prior practice of following different rules had not resulted in convictions of the innocent when it made the new rules nonretroactive.⁽¹¹⁰⁾

The greatest expansion of all, though, came in the capital sentencing cases. In Gregg v. Georgia⁽¹¹¹⁾ and the cases which followed, the Supreme Court read into the Eighth Amendment a detailed code of sentencing procedure which has no bearing whatsoever on the question of guilt or innocence of the offense. While the early cases in this series dealt with the global question of whether the state sentencing system as a whole imposed the sentence of death in a rational way, rather than an arbitrary, capricious way,⁽¹¹²⁾ the later cases have undertaken a detailed examination of the procedure in the sentencing of individual murderers.⁽¹¹³⁾

The reason given for such extensive federal intrusion into state procedure is that "death is different."⁽¹¹⁴⁾ The fallacy here is exposed by comparing two hypothetical prisoners. The first has been sentenced to life in prison for a crime he may not have committed. The second has been sentenced to death for a crime he certainly committed and which is punishable by death, but for which the death penalty may arguably not be "appropriate." Which case carries the potential for greater injustice?

All but the most extreme opponents of capital punishment would have to agree that imprisoning an innocent man for life is a greater injustice than executing any person who is actually guilty of willful, deliberate, premeditated murder. Yet the "death is different" brigade would have us devote more resources to relitigating the penalty phase of capital cases than we devote to reexamining the guilt phase of noncapital cases. The American Bar Association, for example, has contended that any claim that a given procedure "lessens the integrity of sentencing determinations," apparently to any degree, should qualify for an exception to the usual limits on habeas corpus.⁽¹¹⁵⁾

Once a person has been found guilty beyond a reasonable doubt, the choice of sentence within the allowable range of sentences for the offense is necessarily a "judgment call." Reasonable people will always differ as to what sentence is appropriate. In one survey, 11% of the American people opposed capital punishment in all murder cases, while 29% favored it in all murder cases.⁽¹¹⁶⁾ Sentence choice within the allowable range can therefore never result in a miscarriage of justice of the magnitude of the lengthy imprisonment of an innocent person.

The various rules created by the Supreme Court may very well be good rules as matters of policy. It does not follow, however, that an error on the fringes of one of these rules is such a grave injustice that borderline questions must be reconsidered from scratch by four or more different courts.⁽¹¹⁷⁾ Questions arising from the Supreme Court's constitutional decisions are not automatically more important than those arising from rules or statutes. The admissibility of a defendant's prior criminal record, for example, may be so important that the defense lawyer's entire strategy is based upon it,⁽¹¹⁸⁾ yet this question is almost entirely one of statutory law, with little, if any, constitutional basis.⁽¹¹⁹⁾

In short, the assumption that constitutional issues are necessarily more important than statutory issues is false. If trial, appeal, and state habeas are sufficient to reduce the chance of error on these other issues to a level we consider acceptable, there is no apparent reason why these same remedies are necessarily inadequate to resolve federal constitutional questions.

E. Illegitimate functions of habeas review.

The reasons most often stated publicly for de novo review on habeas corpus are not necessarily the most important reasons from the defense perspective. The defense gains other benefits from federal habeas corpus which are patently illegitimate.

     1. Delay.

So long as habeas litigation continues, the execution of the capital sentence must be stayed. Each day's delay is an incremental victory for the opponents of capital punishment and an incremental loss in the deterrent, retributive, and incapacitative value of capital punishment. Relitigation of issues already fully and fairly litigated once add greatly to the delay.

The Powell Committee found that federal habeas corpus made up 40% of the total delay from sentence to execution in a sample of 50 cases.⁽¹²⁰⁾ This figure, however, is derived from cases completed to execution and thus undersamples the most extremely prolonged cases, most of which had not been completed. An example of the latter is the case of Jimmie Wayne Jeffers from Arizona.

Jeffers murdered Penelope Cheney in May 1976.⁽¹²¹⁾ Fourteen years later, after exhaustive review in both the state and federal courts, the United States Supreme Court resolved the principal issue against Jeffers. That was four and a half years ago as of this writing, and the sentence has still not been carried out. The Ninth Circuit has taken all of that time to resolve, against Jeffers, the issues that it had not deemed important enough to resolve in its first opinion.⁽¹²²⁾ Mere decision of the remaining questions of law after remand has taken longer than the entire review process from judgment to execution ought to take. And all this has happened in a case where there is no doubt whatever who committed the murder. This is intolerable.

     2. Expense.

A common argument against capital punishment is that it simply costs too much. Habeas corpus is an important component of this cost. Every murder case in which the prosecution seeks the maximum penalty, and hence has nothing to plea bargain with, requires a trial and an appeal. The marginal cost of having capital punishment, therefore, consists to a large extent of the penalty phase and the additional review procedures. Capital habeas cases are fought longer and harder than noncapital cases, driving up the cost of capital punishment. Thus some opponents of capital punishment argue that the cost of de novo review on federal habeas is a strong reason to abolish capital punishment.⁽¹²³⁾ Since the people will not stand for that, this becomes a strong reason to abolish de novo review on federal habeas.

     3. "Heads I win; tails we take it over."

Finally, there is the judge-shopping effect. As noted earlier, state courts often accept claims that would be rejected in federal court. Conversely, federal courts sometimes accept claims already rejected in state court. The defendant can effectively "appeal" a state ruling to federal court, but the prosecution cannot. The result is to heavily bias the decision in favor of the defense.

Suppose, for example, there is a question of whether a fully voluntary confession was taken in complete accordance with the Miranda rule, the question is close enough that half of all judges would affirm and half would reverse, and the state and federal courts in question are both middle-of-the-road ideologically. The defendant has a 50-50 chance of winning in state court. If he does, and the U. S. Supreme Court denies certiorari, that is the end of the case. On the other hand, if he loses in state court he has another 50-50 chance of winning in federal court. Thus, the defendant has a 75% chance of reversal on a claim that should be only 50-50.

The criminal justice system is intentionally biased in favor of the defendant on the question of guilt. For centuries, the Anglo-American system of law has adhered to the principle that it is better for ten guilty men to go free than for one innocent to suffer,⁽¹²⁴⁾ and both the burden of proof and the double jeopardy rule reflect that intentional bias. But is there any reason to bias the system on the resolution of judicially created rules of recent vintage, far removed from the original meaning of the Bill of Rights, in cases where there is no genuine doubt as to the identity of the murderer? For these questions, a wrong decision for the defendant is every bit as unjust as a wrong decision for the people, if not more so. The people and the defendant ought to stand on equal ground.