Chipping Away at the Great Writ: Will Death Sentenced Federal Habeas Corpus Petitioners Be Able to Seek and Utilize Changes in the Law


The writ of federal habeas corpus generally provides an opportunity for those convicted in state court to challenge their conviction or sentence based on any federal constitutional claim that has been properly preserved for federal court review. Under present law “[t]he Supreme Court… or a district court shall entertain an application for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a state court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States.”

The function and scope of the federal habeas corpus remedy in the judicial review of state convictions and sentences has been the subject of considerable controversy. Some espouse an expansive view of the writ, a view articulated by the Supreme Court as far back as 1868 when it stated that the habeas corpus statute “brings within the habeas corpus jurisdiction of every court and of every judge every possible case of privation of liberty contrary to the National Constitution, treaties or laws. It is impossible to widen this jurisdiction.”

Others argue that this expansive reach of the remedy lacks both historical foundation and contemporary justification. They assert that the federal habeas remedy should be limited to what they understand to be its narrower, common law origins, noting that “[u]ntil the early years of this century, the substantive scope of the federal habeas corpus statutes was defined by reference to the scope of the writ at common law, where the courts’ inquiry on habeas was limited exclusively ‘to the jurisdiction of the sentencing tribunal.'” The expansion of the writ, they contend, produces two unacceptable consequences. First, it undermines the finality of the state criminal process, thereby generating disrespect for the law among citizens. Second, it undercuts federalism interests by frustrating state court efforts to faithfully apply federal constitutional law principles.

More specifically, critics of an expansive view of the writ feel that the federal habeas remedy duplicates the efforts of the state courts, assuming the state courts have afforded the accused a full and fair hearing on the federal constitutional claims. As Justice Harlan noted,

[b]y hypothesis, a final conviction, state or federal, has been adjudi- cated by a court cognizant of the Federal Constitution and duty bound to apply it. To argue that a conclusion reached by one of these ‘inferior’ courts is somehow forever erroneous because years later this Court took a different view of the relevant constitutional command carries more emotional than analytic force.

These critics reject the notion that increasing the number of opportunities for review necessarily enhances the likelihood that the ultimate outcome will be correct. They contend that the federal habeas remedy should not provide an avenue to essentially re-litigate state trials – even when the defendant’s life is at stake.

In response to these criticisms, proponents of the broader view of the federal habeas remedy assert that experience has shown the need for a federal forum to review federal rights, particularly in the cases of capital defendants. The rate of success of death sentenced individuals in federal habeas proceedings, it is argued, strongly supports this claim. Proponents of an expansive federal remedy also point to the pressures on state court judges in high visibility proceedings, such as capital cases, and emphasize that because many state court judges are popularly elected, they lack the independence of their federal counterparts. They also assert that increased opportunities for review enhance the likelihood that the outcome will be correct, a particularly important goal when the stakes are life or death. Finally, they suggest that federal review is not designed to show disrespect for the state courts but simply to insure that the decision to deprive an individual of his liberty or even his life is constitutional.

In recent years, the debate over the reach of the federal habeas remedy has divided the Supreme Court, with a majority exhibiting an increased willingness to limit the scope of the writ especially in death cases. Some attribute the relatively low number of executions since 1976, the year that the Court rejected a broad based eighth amendment challenge to certain state capital punishment statutes, to the availability and scope of the federal habeas remedy. Congress, however, has repeatedly rebuffed recent efforts to limit the reach of the federal habeas corpus remedy.

How this debate over the proper scope of federal habeas corpus is resolved by Congress and/or the Supreme Court holds enormous importance, particularly for those sentenced to death in the state courts. In its 1988-89 term, the Supreme Court handed down two decisions, Teague v. Lane and Penry v. Lynaugh, which graphically indicate that a slim majority of the Court is displeased with the present state of the federal habeas writ. Both decisions offer clues as to future development of habeas doctrine. Read together, they reflect a limited role for the federal habeas corpus remedy in the judicial review process of those convicted in state courts, including those sentenced to death.

In Teague, a four person plurality concluded that, subject to what appeared to be two narrow exceptions, federal habeas corpus petitioners would not be permitted to seek a new rule decision. Nor were they to get the benefit of decisions announcing new rules unless those decisions were rendered prior to their convictions becoming final. The Teague plurality specifically left open the question of whether its conclusions should be equally applicable to errors in the capital sentencing process.

In Penry, a five person majority concluded that they should. More fundamentally, the Penry decision implicitly manifests an impatience with the pace of the judicial review process in death oases and specifically a distaste for the role played by the federal habeas remedy in that process. To critics of Teague and Penry, however, this impatience and distaste has resulted in an approach which raises the spectre that because of timing fortuities relating to the pace of litigation, the state will be allowed to take a human life although the manner in which the sentence was determined may in fact violate the Constitution.

This Article analyzes the changes brought by Teague and Penry. After briefly summarizing the two decisions, it first addresses the problems that are likely to arise in the application of the Teague/Penry doctrine given the two exceptions to that doctrine and the fact that the doctrine only applies to decisions announcing new rules. Second, it considers whether the Court’s conclusion in Penry that the Teague rules should govern in the capital sentencing context is correct as a matter of policy. The Article suggests that the Court was not correct and that because Congress clearly has the power to define the reach of the federal habeas remedy, it should act to reverse the Court’s action.

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