Special Problems for Judicial Federalism: Race, the Death Penalty, and Habeas Corpus
One result of mounting a defense of judicial federalism is a tendency to gloss over problems that such a system may either facilitate or even partially cause. We hope to remedy that situation by discussing three important problem areas that are sometimes associated with judicial federalism.
Throughout American history, African-Americans and other racial and ethnic minorities have been subjected to discrimination and unfairness by many state courts. Today that legacy of injustice is intertwined with two other developments arguably flowing from it. One is the increasing use of the death penalty, administered almost entirely in the state system, and which is used disproportionately against nonwhite defendants. The second is the narrowing, both doctrinally and statutorily, of the availability of habeas corpus relief in federal courts. To many, federal habeas corpus has been a necessary corrective to the injustices (i.e., violations of federal law) meted out to minority defendants in state criminal proceedings in general, and to death penalty defendants in particular.
The major point of this chapter is not to defend state courts against their past sins. But we think the exaggeration of the record of state courts that is often made, especially compared to the performance of federal courts,1 is both unfair and, in the long run, counterproductive. In the first place, state courts are, at most, complicit____________________