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Diabolocal Federalism: A Functional Critique and Proposed Reconstruction of Death Penalty Federal Habeas

NCJ Number
American Criminal Law Review Volume: 39 Issue: 1 Dated: Winter 2002 Pages: 1-99
Andrew Hammel
Date Published
99 pages
This article describes the evolution and proposed reconstruction of death penalty Federal habeas beginning with the Warren Court’s criminal procedure revolution or the exhaustion doctrine to the Burger Court’s expansion of the waiver doctrine permitting States to deprive State death row inmates of necessary post-conviction review.
In the 1970's, the Warren Court’s criminal procedure revolution gave Federal courts enormous power to remedy injustices and promote procedural reform in State criminal justice systems. The Warren Court allowed Federal court review of the adequacy of State court post-conviction forums. Federal courts actively supervised the States to potentially ensure that inmates had a fair opportunity to plead and prove their Federal claims in State courts. However, the end of Federal habeas review came with the Burger Court and the use of reinvigorated waiver doctrines. The Supreme Court was now seen as allowing the doctrines to become drastically uncompromising and permitting States to deprive State death row inmates of any meaningful post-conviction review. This endangered the informal understanding that one thorough round of post-conviction review was necessary in the fair administration of the death penalty. The article consists of four significant sections that include: (1) the development and convergence of the doctrines of exhaustion and procedural default; (2) the foundations for reform with an analysis of the current schemes and establishment of some first principles; (3) a coercive “quid pro quo” for post-conviction review; and (4) the proposed statute. The article proposes a functional, pragmatic orientation to habeas reform devoting careful attention to giving death row inmates the practical tools they need to detect any error present in their cases. The proposal scraps the procedural restrictions. It draws heavily on the “quid pro quo” reform models and ensures that inmates have at least one searching, careful, substantive post-conviction review of their convictions and sentences before being executed.


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