Introduction

The jury files back in. They have finally decided. The family of the murder victim waits breathlessly. They have endured the horror of the murder. Then the investigation. Then months of pre-trial maneuvering. Then the guilt trial. Then came the penalty phase, where the defense paints the "good" side of a cold-blooded murderer while any attempt to humanize the departed, innocent victim brings a flood of objections.

Now the verdict is read. The aggravating factors outweigh the mitigating. The sentence is death. Now, finally, they think, justice will be done.

But they are tragically wrong. To borrow Churchill's phrase, it is not the end, or the beginning of the end; at best, it is only the end of the beginning.

Clarence Ray Allen committed murder in 1974 and was convicted in 1977. He was sentenced to life in prison. From within prison, he ordered the murder of the witnesses to the first murder. In September 1980, his assassin shotgunned three people to death and gravely wounded a fourth.⁽¹⁾

Six years later, the California Supreme Court affirmed his conviction and death sentence. During the next two years, it considered and denied a state habeas corpus petition, in which a prison inmate is permitted to attack his sentence on facts outside the appellate record. The U. S. Supreme Court declined to review either proceeding.⁽²⁾

Yet justice has still not been done. On September 2, 1988, a federal district judge issued a stay of execution. Over six years later that stay remains in effect, and the case is still mired in the district court.

Why?

In the pages that follow, this paper will explore the myths and reality of the use of the federal writ of habeas corpus by state prisoners. The conclusions can be summarized as follows:

1. The contention that the present use of the writ, as a second appeal, is required either by the Constitution or by the heritage of the common law "Great Writ" is entirely baseless.

2. As a device for correcting fundamentally unjust verdicts, i.e., convictions of innocent people, the present writ is not suited to the task. The focus of litigation is neither on innocence nor on procedures directly related to the reliability of the guilt verdict.

3. The often-cited statistic that 40% of state capital sentences are overturned on federal habeas is out of date. The overall number is around 15%, and only 8% if the oft-reversed Ninth Circuit is excluded. For guilt verdicts, the rate is only 5%.

The balance of justice and fairness would be better served by limiting federal habeas corpus to cases of actual innocence and to those cases where the state system either is inadequate to the task or has failed to correct a clear violation of a rule universally agreed to be fundamental. The fine points of close questions should be finally decided in a single review by the state supreme court, subject only to reversal by the United States Supreme Court.

All Americans, even clearly guilty murderers, are entitled to due process of law. "But justice, though due to the accused, is due to the accuser also. The concept of fairness must not be strained till it is narrowed to a filament. We are to keep the balance true."⁽³⁾ Justice Cardozo's words ring as true today as they did six decades ago.

Despite some recent gains, the balance remains far from true. Years upon years of review are far more process than is due. In capital litigation today, process is overdue.