Suspending Justice: The Unconstitutionality of the Proposed Six-Month Time Limit on the Filing of Habeas Corpus Petitions by State Death Row Inmates


For the first time in the history of the United States, there is a strong likelihood that Congress will encumber the Great Writ of habeas corpus with a statute of limitations. Two time limit bills were given serious consideration in the 101st Congress. This article will focus on the proposed six-month time limit recommended by the so-called Powell committee on habeas reform. Following a discussion of the Powell committee’s proposals and a critique of the committee’s reasoning, this article traces the history of the suspension clause of the United States Constitution and argues that the clause applies to state as well as federal prisoners. Measuring the suspension clause against the Powell committee’s time limits, this article concludes (1) that any absolute time limit probably violates the clause, and (2) that the Powell committee’s six-month limit definitely violates the clause.

The constitutionality of the six-month time limit is a matter of literally vital importance. We wonder, however, whether our topic is a matter of academic interest only, because it has been eclipsed by the Supreme Court’s 1989 and 1990 “retroactivity” decisions. These cases, taken together, appear to stand for the proposition that the right of habeas will be unavailable to inmates basing their constitutional claims on “new rules” articulated in decisions rendered after the date their convictions become final on direct appeal. A “new rule” is defined as any decision not “dictated” by precedent or about which “reasonable minds” could differ. This good faith exception to the habeas statute is sophistry, but it could have a devastating impact on death row inmates who are confined in violation of the Constitution. The retroactivity decisions craft an elegant box. If the inmate must rely on a “new rule,” then she loses under the retroactivity holdings. But if not relying on a new rule, then how can an inmate explain why her claims failed in state court?

While the Powell committee’s proposed six-month time limit would significantly impair condemned inmates’ access to federal review, the retroactivity cases may effectively foreclose federal review altogether except in those rare cases where an inmate can show that the state courts did not act in good faith in rejecting her claims. At least the time limits permit condemned in- mates to get through the courthouse door. But after the retroactivity decisions, it may not matter. The retroactivity cases appear to have cemented a barrier far stronger than any time limit.

Suggested Reading

Andrew Michaels∞ I. Introduction II. The Court’s Death Penalty And Categorical-Exemption Jurisprudence A. Atkins and Roper: The Court’s Articulation of the Two-Part Test for Categorical Exemption  B. Graham: Finding a National Consensus Against a Punishment Based Solely on the Rarity of its Implementation  III. Why