Death Ineligibility and Habeas Corpus

Lee Kovarsky - New York University School of Law.

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The Supreme Court has recently declared several categories of prisoners, such as juvenile and mentally retarded offenders, to be categorically ineligible for capital punishment under the Eighth Amendment.  If these “death ineligible” offenders nonetheless sit on death row with procedurally defective habeas corpus petitions, can the writ be used to scrutinize their capital eligibility?  In other words, may a death-ineligible offender be executed on a technicality?

The role habeas corpus is to play in redressing ineligibility violations remains a conspicuously open question.  That question, in turn, implicates some of the most fundamental disagreements over the Supreme Court’s authority over the writ’s function, as well as over the related “actual innocence” laws that often determine the outcome of federal habeas litigation.  Existing ineligibility rules derive largely from actual innocence law applicable to the more familiar concept of “crime innocence”—the idea that, colloquially speaking, the petitioner “wasn’t there, and didn’t do it.”  A death ineligibility challenge, by contrast, does not dispute that the offender committed the murder for which he was convicted; it disputes only the constitutionality of the capital sentence.

The contemporary habeas model’s arc is familiar to habeas scholars.  Modern habeas restrictions are largely responses to three developments during the Warren era: new Fourth, Fifth, and Sixth Amendment procedural rights; their application against states through the Fourteenth Amendment; and the vesting in state prisoners of a federal habeas remedy.  Habeas activity swelled as offenders went to federal court to relitigate procedural claims that they had lost in state proceedings.  Many of the newly cognizable claims had no bearing on the guilt or innocence of the defendant.  These developments provoked landmark critiques by Professor Paul Bator and Judge Henry Friendly, which argued that courts should curtail such litigation dramatically.  Both the Supreme Court and Congress gradually incorporated the ideas appearing in those critiques into habeas law.

Death ineligibility claims disrupt this established model of habeas adjudication.  They are not purely procedural challenges, but they are not challenges to a conviction’s validity.  The number of offenders in which a death ineligibility claim vests has increased dramatically and will only grow as the Court declares new categories of prisoners—probably those exhibiting some sort of diminished capacity—exempt from capital punishment.  In light of important distinctions between death ineligibility challenges and the claims upon which existing law is premised, the Supreme Court should reformulate habeas relief available to categories of offenders that may not be executed under the Eighth Amendment.

Innocence in Habeas Law

The writ of habeas corpus is a civil, post-conviction remedy with roots dating back to fourteenth century English common law.  The United States Constitution forbids Congress from suspending the writ except during periods of invasion or rebellion.  Congress statutorily authorized federal courts to issue habeas relief to federal prisoners in 1789, and it made the writ available to state prisoners at the inception of Reconstruction.  Modern habeas rules are a creature of common, statutory, and constitutional law.  The most recent legislation is the Antiterrorism and Effective Death Penalty Act (“AEDPA”), which altered or enacted several key features of current habeas law.  Capital prisoners may use federal habeas proceedings to attack either a conviction or a sentence.

After Brown v. Allen (1953) established definitively that federal habeas jurisdiction included authority to hear challenges to procedurally sound state trials, Professor Paul Bator and Judge Henry Friendly produced landmark scholarship that has shaped the conservative position on habeas for a half-century.  Professor Bator emphasized the epistemic limits of human inquiry and argued that the criminal justice system ensures correctness by proxy of reliable procedure.  Judge Friendly’s central thesis was that innocence should be the touchstone of any decision to disrupt state criminal process.

“Actual innocence” claims appear in two analytic variants.  The first is as a “gateway claim,” which is asserted to overcome a procedural defect in a habeas petition.  Emboldened by theories that habeas relief should be reoriented towards innocence (Judge Friendly) and circumscribed by the epistemic limits of human inquiry (Professor Bator), the Court and Congress began to impose procedural obstacles to relief.  Restrictions apply to claims not properly presented to state courts (“defaulted claims”), claims presented in prior federal petitions (“successive claims”), claims that were not (but could have been) presented in prior federal petitions (“abusive claims”), and claims that do not comply with the federal statute of limitations (“untimely claims”).

Concurrently, the Court developed “gateways”—showings that overcome the procedural restrictions.  Although the gateways’ contents have largely converged, they originally derived from different authority and exhibited different formulations.  All of the gateway formulations, before they were narrowed, would have encompassed death ineligibility claims had such claims been cognizable at that time.

A freestanding innocence claim, the second analytic variant of an actual innocence challenge, alleges a prisoner’s innocence, but not an accompanying constitutional violation.  Whether a freestanding innocence claim is even cognizable on federal habeas review remains an open question.

Under the habeas statute, prisoners may obtain habeas relief only for constitutional violations, and the Court has wrestled with the question of which constitutional provision a freestanding crime innocence claim invokes.  If a freestanding innocence claim states a constitutional violation, then it is cognizable under the habeas statute.  The habeas statute, however, unambiguously imposes all sorts of remedial limits on meritorious claims.  The question of whether a federal court must grant relief naturally arises whenever a routine restriction on the remedy (such as the statute of limitations) is applied to a potentially meritorious innocence claim.

The Court has been unable to resolve whether freestanding crime innocence challenges assert claims that may be characterized as constitutional, having avoided the question in Herrera v. Collins (1993) and on at least three occasions in the last five years.  By contrast, ineligibility claims are anchored uncontroversially in the Eighth Amendment, and courts need not decide the issue of whether habeas review may be used to redress arguably non-constitutional claims.

Death Ineligibility

Furman v. Georgia (1972) effectively invalidated almost all existing state capital sentencing schemes.  In the four years after Furman, at least thirty-five states passed new capital sentencing statutes, many of them bifurcating capital trials into guilt and punishment phases.  Every state that retains the death penalty now conducts a separate punishment phase.

Under post-Furman statutes, states will not impose death without proof of statutorily defined aggravating circumstances, and the first death ineligibility litigation grew out of these sentencing requirements.  In Sawyer v. Whitley (1992), the Supreme Court held that evidence offered to disprove the existence of statutory aggravators could satisfy the innocence gateway applicable to procedurally defaulted claims.

I refer to instances where an offender argues that he would not satisfy any statutory aggravators as “paradigm” ineligibility claims for two reasons: First, because Sawyer challenges were, until recently, the most common type of ineligibility claim.  Second, because they invite re-litigation of fact questions resolved by a jury and subject to evidentiary decay, they fit neatly within the familiar critiques of the Warren Court’s habeas jurisprudence.  Because a paradigm ineligibility inquiry is in many respects similar to that conducted for more familiar procedural and crime innocence claims, the controlling ineligibility law became a feature of actual innocence jurisprudence uneventfully.

For my purposes, the most important non-paradigm ineligibility claims are the following: a claim under Atkins v. Virginia (2002) that an offender may not be executed because he is mentally retarded, a claim under Ford v. Wainwright (1986) and Panetti v. Quarterman (2007) that he is not competent to be executed, and a claim under Roper v. Simmons (2005) that he may not be executed because he was a minor when he committed the offense.  Entertaining ineligibility claims does not compromise the traditional interests promoted by post-Bator/Friendly habeas law.

Professor Bator and Judge Friendly both questioned the prudence of allocating scarce institutional resources to redundant federal habeas inquiries.  Non-paradigm ineligibility claims are not well suited to these resource-based critiques.  First, many such challenges cannot be litigated at trial or on direct review.  Second, when the Court recognizes an ineligibility category, many qualifying offenders will already be on death row.  Third, there are structural reasons to believe a crucial assumption of Judge Friendly and Professor Bator—that state process is effective—simply does not hold in the death ineligibility context.  Fourth, most empirical data suggests that procedural bars do not diminish the amount of habeas litigation; all that happens is that courts divert resources to procedural questions.  Finally, choking off habeas review of ineligibility claims could require the Supreme Court to expend valuable resources avoiding unconstitutional executions by scrutinizing claims on its direct review of state collateral proceedings.

Both Professor Bator and Judge Friendly emphasize an interest in the offender’s rehabilitation.  Setting aside the powerful argument that incarceration does not promote rehabilitation generally, rehabilitation cannot logically be a penal objective of a death sentence because that sentence necessarily means the capital offender will not ever return to society.

Judge Friendly and Professor Bator both express concerns about evidence becoming stale over time.  The argument also makes sense for paradigm ineligibility claims, which usually require a court to consider the impact of lay witness testimony on statutory aggravators.  Non-paradigm ineligibility challenges, however, do not generally involve such decaying evidence.  Roper challenges allege that the offender was a juvenile, and the evidence does not degrade.  Atkins challenges assert mental retardation, a clinical diagnosis (perhaps more) easily made at the time of the habeas challenge.  Ford competency challenges seek relief that cannot be adjudicated at trial at all.  Moreover, in all of these contexts, relief does not require a new trial; it only requires a reduction to a life sentence.

Failures of State Process

One of the central conceits of modern habeas law is the sufficiency of state process.  If state trials, post-conviction review, and clemency can ensure that states do not execute ineligible offenders, then one might argue that there is no need to worry about how federal habeas law affects these claimants.  Unfortunately, state process is unlikely to adequately protect such offenders’ rights.

First, trials are inherently incapable of protecting the rights of offenders with premature ineligibility claims, such as those involving an offender’s competence to be executed.  Second, the Supreme Court may not have yet recognized the relevant constitutional claim when the state court sentences an offender.  Third, the tests certain states apply to ineligibility claims deviate significantly from the clinical standards used in federal court.  Finally, there are local political pressures in state capital trials that are absent in a federal forum: state judges are generally either appointed by elected governors or are elected themselves, and, in many death penalty jurisdictions, rules against executing certain categories of offenders may be very unpopular.

After a defendant’s conviction becomes final, state prisoners must pursue state post-conviction remedies before seeking federal habeas relief.  Death ineligible offenders are often subject to systemic or idiosyncratic state procedural bars.  There is no federal right to a lawyer during state post-conviction review, which is notoriously complex.  Even if a prisoner does secure counsel, there is no mechanism to ensure that such representation is constitutionally adequate.  The federal statute of limitations is not tolled during the preparation of state post-conviction applications.  Moreover, familiar political pressures undermine post-conviction adjudication.

The most frequently invoked argument for the sufficiency of state corrective process involves the availability of clemency.  Clemency authority includes the power to commute sentences, which is roughly the relief sought by ineligibility claimants.  The power usually vests in a governor, although in some states the governor shares this power with an executive-appointed administrative board.  Unlike judicial process, clemency lacks both formalized procedure and substantive standards.  The absence of red tape means that there are no procedural safeguards, and the lack of substantive standards means that clemency may be denied for any reason.  There is no judicial review of a clemency decision.  There are serious problems with the argument that clemency is a safety valve for failures in ineligibility adjudication.  Because clemency power vests either in a governor or in a board appointed thereby, the decision occurs in the most political climate imaginable.  The calculus necessarily involves a number of factors other than the merit of the constitutional claim: the lawyers’ political affiliations and ambitions, the status of the victim’s family, the proximity to a gubernatorial election, and the perception that a governor is too soft on crime.  Mentally ill and mentally retarded offenders fare particularly poorly in clemency proceedings.

Configuring Ineligibility Doctrine

The salient ineligibility question involves how courts and Congress may limit habeas as a remedy for state violations.  Habeas law is, after all, replete with rules that frustrate relief for meritorious claims.  I submit that the Court is unlikely to actually constitutionalize entitlement to the habeas remedy for a variety of reasons beyond the scope of this shortened Editorial, but that it may nonetheless avoid unconstitutional executions by interpreting habeas rules in favor of ineligible claimants whose challenges appear in procedurally defective petitions.  The license to engage in such interpretation is well established, as the Court has historically ignored restrictive statutory wording and has emphasized its common law authority to shape the writ’s function.

Section 2244(b)(1) states that all successive claims shall be dismissed.  Section 2244(b)(2) provides for roughly similar treatment of abusive claims, but with an exception for clear and convincing proof that an offender is not guilty.  On first blush, AEDPA therefore appears to have eliminated relief for any successive claim and winnowed the abusive claim gateway down to a pure crime innocence inquiry.  In order to avoid the Suspension Clause and procedural due process issues, however, courts may nonetheless construe AEDPA to allow merits consideration of ineligibility claims in successive petitions.

The Supreme Court has a rich history of ignoring potentially restrictive wording when interpreting the habeas statute’s limits on abusive and successive claims.  For example, in 1966 Congress eliminated any statutory reference in § 2244(b) to “the ends of justice,” but Kuhlmann v. Wilson (1986) continued to apply that exception to successive claims.  Nor have federal courts been bashful about interpreting AEDPA’s facially severe limits in favor of petitioners.  Even the Supreme Court has highlighted the absurdity of applying § 2244(b) to a Ford claim in a prior petition that was dismissed as premature.

Section 2244(d)(1) specifies the “trigger dates” for the one-year limitations period on filing federal habeas petitions.  Section 2244(d)(2) tolls the limitations period during state post-conviction proceedings.  Whereas § 2244(b)’s successive petition limits have common law antecedents, the statute of limitations does not.  There is no statutory exception either for crime innocence or for death ineligibility.  Because Atkins has forced the issue, the ineligibility question is only now percolating in appeals courts.

Although the Supreme Court has never formally affirmed the idea, every appeals court to consider the issue has recognized that events not specified in the statute may equitably toll the statute of limitations—usually upon a showing of due diligence and extraordinary circumstances.  The circuits divide on the question of whether a showing of crime innocence equitably tolls the statute of limitations, with several suggesting that the rule applies in order to avert Suspension Clause problems.

In the death ineligibility context, questions of equitable tolling most frequently arise in connection with Atkins and Ford claims.  Several circuits equitably toll the statute of limitations once a prisoner shows that he is not competent to be executed, and others toll the statute only once the petitioner shows a causal connection between his mental condition and his failure to file a timely petition.  The result of such confused treatment in the appeals courts, and of particularly harsh treatment in the Fifth Circuit (which includes the Texas capital docket), is that many offenders with legitimate ineligibility challenges will not have the merits of their claims entertained in federal court.  Future litigants may persuade courts to apply equitable tolling to avoid Suspension Clause issues—perhaps automatically upon a colorable showing of ineligibility.  In Suspension Clause and equitable tolling jurisprudence, courts have the two concepts they would need to undertake constitutional avoidance: a constitutional provision that undermines a literalist statutory interpretation and a plausible alternative construction.

Our existing habeas corpus regime is largely informed by critiques of Warren era litigation, which are not well suited to ineligibility adjudication.  Under the prevailing habeas model, offenders with meritorious ineligibility claims may be executed because the petition containing their claim is procedurally defective.  By invoking the Suspension Clause, equitable principles, and the canon of constitutional avoidance, federal courts may nonetheless be able to avert state executions that the Eighth Amendment categorically forbids.



Copyright © 2010 Cornell Law Review.

I would like to thank Susan Bandes, John Blevins, David Dow, Brandon Garrett, Jim Marcus, Stephen Schulhofer, David Shapiro, Jordan Steiker, Jared Tyler, and Larry Yackle for various forms of input during the drafting process. I would also like to thank participants in the NYU School of Law Lawyering Colloquium for their feedback on several versions of this manuscript. Finally, I am grateful to Mary Kathryn Martin and Kirstin O’Connor for their research assistance. In fairness to the reader, I should disclose that I represent or represented several of the mentally retarded claimants involved in eligibility cases discussed herein.

Lee Kovarsky is Acting Assistant Professor at New York University School of Law.

This Legal Workshop Editorial is based on the following Law Review Article: Lee Kovarsky, Death Ineligibility and Habeas Corpus, 95 CORNELL L. REV. 329 (2010).

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