Limiting Habeas Corpus

April 21, 1991

Last year Chief Justice William Rehnquist asked Congress to change the law regarding habeas corpus writs in federal courts. These are appeals often employed by inmates in state prisons seeking federal review of what they say were unconstitutional state acts in conviction or sentencing. The chief justice said that especially in death penalty cases there were too many, that often they were filed serially with some claims held back till the others had been rejected as a delaying tactic and that they were clogging the system.

He was right, but his idea of limiting appeals to one per case except in unusual situations is extreme. The American Bar Association and the Judicial Conference of the United States opposed his plan and Congress refused to act.

So last week the Supreme Court changed the law itself. Now a petitioner for habeas review will only get a second chance if he can prove he was in effect prevented by the state from making the second claim in the first place -- and that the claim would have made a difference in the verdict at the trial. That is an unfair standard. What of the defendant whose first appeal was handled by an incompetent or unethical lawyer? This is often the case where defendants are poor.

But even if the standard were fair, the way the Supreme Court enunciated and applied it to the case at hand makes a mockery of what has been called "the great writ" (because the use of habeas corpus often stands between individuals and state abuse of liberty). Georgia prosecutors hid from the defendant's lawyer a 21-page signed document from an informant involved in the case at the time of the first habeas appeal. Yet the Supreme Court said this blatant misconduct did not justify a second appeal. The court's majority also refused to accept the argument that the jury might have arrived at a different verdict if it had been aware of the existence of the document and the prosecution-informant relationship.

Three justices dissented. Justice Thurgood Marshall said for them that not only is this a case of bad law written by the court's majority out of frustration at their failure to get Congress to act, but it also, dangerously, creates an "incentive for state officials to engage in this very type of misconduct. . . [and] rewards state misconduct and deceit."

Congress needs to change federal law, and the 1976 "Rules Governing Habeas Corpus Proceedings" if the Judicial Conference refuses to do so, to make it clear that while habeas appeals must be reasonable and not a vehicle for mere stalling, they must be available when constitutional rights have been violated.

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