Habeas Corpus - Limited Review for Actual Innocence
Breuer, Jennifer R., Journal of Criminal Law and Criminology
In Herrera v. Collins,(1) the United States Supreme Court held that absent an accompanying constitutional violation, a claim of actual innocence by a death penalty petitioner is not grounds for federal habeas corpus relief. Although Chief Justice Rehnquist, writing for the majority, refused to authorize review of Herrera's claim, he disposed of the case by assuming, arguendo, that the Constitution would prohibit the execution of a petitioner who made a truly persuasive showing of actual innocence. The Court offered neither a constitutional rationale for its hypothetical treatment nor a standard by which evidence of actual innocence would be measured. This Note examines the history of federal habeas corpus review and argues that the Court logically extended precedent in a manner consistent with its current position on federal habeas corpus: habeas relief is to be granted only in cases of egregious procedural error in order to encourage the finality of state court decisions.
This Note further argues that the Court's hypothetical argument is in line with recent decisions that make available narrow exceptions for substantive review in truly extraordinary circumstances. Finally, this Note argues that a truly compelling showing of actual innocence would require the Court to adopt a substantive interpretation of habeas relief in order to justify its review of the claim.
A. FEDERAL HABEAS CORPUS JURISPRUDENCE
The "Great Writ" of habeas corpus, "the most celebrated writ in the English Law,"(2) offers protection against "illegal restraint or confinement."(3) Habeas corpus relief is based in the principle "that in a civilized society, government must always be accountable to the judiciary for a man's imprisonment: if the imprisonment cannot be shown to conform with the fundamental requirements of law, the individual is entitled to his immediate release."(4) Habeas corpus protection originated at common law(5) and is guaranteed by the Constitution, which provides that "[t]he Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in the Cases of Rebellion or Invasion the public Safety may require it."(6) In addition, Congress created a habeas remedy for federal prisoners held "in custody, under or by colour of the authority of the United States" in its first grant of jurisdiction to the federal courts in 1789.(7)
Initially, habeas protection existed only for cases in which the legal process leading to imprisonment(8) or the jurisdiction of the sentencing tribunal(9) were challenged. In 1867, Congress extended federal habeas corpus protection to prisoners held in state custody.(10) The Court noted that the congressional act "brings within the habeas corpus jurisdiction of every court and of every judge every possible case of [de]privation of liberty contrary to the National Constitution, treaties or laws. It is impossible to widen this jurisdiction."(11)
Despite the stated expansion, habeas protection continued to be applied only to cases in which the defendant alleged that the sentencing court lacked personal or subject matter jurisdiction.(12) The Court extended the reach of federal habeas review during the later part of the nineteenth century, however, by changing the circumstances under which the lack of state court jurisdiction could be found.(13) Even after this shift, federal habeas courts sat not as fact finders but as guarantors of fundamental constitutional rights. Justice Holmes noted that "what we have to deal with [on habeas review] is not the petitioners' innocence or guilt but solely the question whether their constitutional rights have been preserved."(14) In Hyde v. Shine,(15) the Court further articulated its position on evidentiary review when it held that "[i]n the Federal courts.... it is well settled that upon habeas corpus the court will not weigh the evidence, although if there is an entire lack of evidence to support the accusation the court may order his discharge. …