|Schneckloth v. Bustamonte
[ Stewart ]
[ Blackmun ]
[ Powell ]
[ Douglas ]
[ Brennan ]
[ Marshall ]
Schneckloth v. Bustamonte
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
MR. JUSTICE POWELL, with whom THE CHIEF JUSTICE and MR. JUSTICE REHNQUIST join, concurring.
While I join the opinion of the Court, it does not address what seems to me the overriding issue briefed and argued in this case: the extent to which federal habeas corpus should be available to a state prisoner seeking to exclude evidence from an allegedly unlawful search and seizure. I would hold that federal collateral review of a state prisoner's Fourth Amendment claims -- claims which rarely bear on innocence -- should be confined solely to the question of whether the petitioner was provided a fair opportunity to raise and have adjudicated the question in state courts. In view of the importance of this issue to our system of criminal justice, I think it appropriate to express my views.
Although petitions for federal habeas corpus assert a wide variety of constitutional questions, we are concerned in this case only with a Fourth Amendment claim that an unlawful search occurred and that the state court erred in failing to exclude the evidence obtained therefrom. A divided court in Kaufman v. United States, 394 U.S. 217 (1969), held that collateral review of search and seizure claims was appropriate on motions filed by federal prisoners under 28 U.S.C. § 2255. Until Kaufman, a substantial majority of the federal courts of appeals had considered that claims of unlawful search and seizure "‘are not proper matters to be presented by a motion to vacate sentence under § 2255. . . .'" Id. at 220. The rationale of this view was fairly summarized by the Court:
The denial of Fourth Amendment protection against unreasonable searches and seizures, the Government's [p251] argument runs, is of a different nature from denials of other constitutional rights which we have held subject to collateral attack by federal prisoners. For, unlike a claim of denial of effective counsel or of violation of the privilege against self-incrimination, as examples, a claim of illegal search and seizure does not impugn the integrity of the factfinding process or challenge evidence as inherently unreliable; rather, the exclusion of illegally seized evidence is simply a prophylactic device intended generally to deter Fourth Amendment violations by law enforcement officers.
Id. at 224.
In rejecting this rationale, the Court noted that, under prior decisions, "the federal habeas remedy extends to state prisoners alleging that unconstitutionally obtained evidence was admitted against them at trial," [n1] and concluded that there was no basis for restricting
access by federal prisoners with illegal search and seizure claims to federal collateral remedies, while placing no similar restriction on access by state prisoners.
Id. at 225-226. In short, on petition for habeas corpus or collateral review filed in a federal district court, whether by state prisoners under 28 U.S.C. § 2254 or federal prisoners under § 2255, the present rule is that Fourth Amendment claims may be asserted and the exclusionary rule must be applied in precisely the same manner as on direct review. Neither the history or purpose of habeas corpus, the desired prophylactic utility of the exclusionary rule as applied to Fourth Amendment claims, nor any sound reason relevant to the administration of criminal justice in our federal system justifies such a power. [p252]
The federal review involved in this Fourth Amendment case goes well beyond the traditional purpose of the writ of habeas corpus. Much of the present perception of habeas corpus stems from a revisionist view of the historic function that writ was meant to perform. The critical historical argument has focused on the nature of the writ at the time of its incorporation in our Constitution and at the time of the Habeas Corpus Act of 1867, the direct ancestor of contemporary habeas corpus statutes. [n2] In Fay v. Noia, 372 U.S. 391, 426 (1963), the Court interpreted the writ's historic position as follows:
At the time the privilege of the writ was written into the Federal Constitution, it was settled that the writ lay to test any restraint contrary to fundamental law, which, in England, stemmed ultimately from Magna Charta, but, in this country, was embodied in the written Constitution. Congress, in 1867, sought to provide a federal forum for state prisoners having constitutional defenses by extending the habeas corpus powers of the federal courts to their constitutional maximum. Obedient to this purpose, we have consistently held that federal court [p253] jurisdiction is conferred by the allegation of an unconstitutional restraint, and is not defeated by anything that may occur in the state court proceedings.
If this were a correct interpretation of the relevant history, the present wide scope accorded the writ would have arguable support, despite the impressive reasons to the contrary. But recent scholarship has cast grave doubt on Fay's version of the writ's historic function.
It has been established that both the Framers of the Constitution and the authors of the 1867 Act expected that the scope of habeas corpus would be determined with reference to the writ's historic, common law development. [n3] Mr. Chief Justice Marshall early referred to the common law conception of the writ in determining its constitutional and statutory scope, Ex parte Bollman, 4 Cranch 75, 93-94 (1807); Ex parte Watkins, 3 Pet.193, 201-202 (1830), and Professor Oaks has noted that,
when the 1867 Congress provided that persons restrained of their liberty in violation of the Constitution could obtain a writ of habeas corpus from a federal court, it undoubtedly intended -- except to the extent the legislation provided otherwise -- to incorporate the common law uses and functions of this remedy. [n4]
It thus becomes important to understand exactly what was the common law scope of the writ both when embraced by our Constitution and incorporated into the Habeas Corpus Act of 1867. Two respected scholars have recently explored precisely these questions. [n5] Their efforts [p254] have been both meticulous and revealing. Their conclusions differ significantly from those of the Court in Fay v. Noia, that habeas corpus traditionally has been available "to remedy any kind of governmental restraint contrary to fundamental law." 372 U.S. at 405.
The considerable evidence marshaled by these scholars need not be restated here. Professor Oaks makes a convincing case that, under the common law of habeas corpus at the time of the adoption of the Constitution,
once a person had been convicted by a superior court of general jurisdiction, a court disposing of a habeas corpus petition could not go behind the conviction for any purpose other than to verify the formal jurisdiction of the committing court. [n6]
Certainly that was what Mr. Chief Justice Marshall understood when he stated:
This writ [habeas corpus] is, as has been said, in the nature of a writ of error which brings up the body of the prisoner with the cause of commitment. The court can undoubtedly inquire into the sufficiency of that cause, but if it be the judgment of a court of competent jurisdiction, especially a judgment withdrawn by law from the revision of this court, is not that judgment, in itself, sufficient cause? Can the court, upon this writ, look beyond the judgment and reexamine the charges on which it was rendered. A judgment, in its nature, concludes the subject on which it is rendered, and pronounces the law of the case. The judgment of a court of record whose jurisdiction is final is as conclusive on all the world as the judgment of this court would be. It is as conclusive on this court as it is on other courts. It puts an end to inquiry concerning the fact by deciding it.
Ex parte Watkins, 3 Pet. at 202-203. [p255]
The respect shown under common law for the finality of the judgment of a committing court at the time of the Constitution and in the early 19th century did not, of course, explicitly contemplate the operation of habeas corpus in the context of federal-state relations. Federal habeas review for state prisoners was not available until passage of the Habeas Corpus Act of 1867. Yet there is no evidence that Congress intended that Act to jettison the respect theretofore shown by a reviewing court for prior judgments by a court of proper jurisdiction. The Act
received only the most perfunctory attention and consideration in the Congress; indeed, there were complaints that its effects could not be understood at all. [n7]
In fact, as Professor Bator notes, it would require overwhelming evidence, which simply is not present, to conclude that the 1867 Congress intended
to tear habeas corpus entirely out of the context of its historical meaning and scope and convert it into an ordinary writ of error with respect to all federal questions in all criminal cases. [n8]
Rather, the House Judiciary Committee, when it reviewed the Act in 1884, understood that it was not
contemplated by its framers or . . . properly . . . construed to authorize the overthrow of the final judgments of the State courts of general jurisdiction, by the inferior Federal judges. [n9]
Much, of course, has transpired since that first Habeas Corpus Act. See Fay v. Noia, 372 U.S. at 449-463 (Harlan, J., dissenting). The scope of federal habeas corpus for state prisoners has evolved from a quite limited inquiry into whether the committing state court had jurisdiction, Ardrews v. Swartz, 156 U.S. 272 (1895); In re [p256] Moran, 203 U.S. 96 (1906), to whether the applicant had been given an adequate opportunity in state court to raise his constitutional claims, Frank v. Mangum, 237 U.S. 309 (1915); and finally to actual redetermination in federal court of state court rulings on a wide variety of constitutional contentions, Brown v. Allen, 344 U.S. 443 (1953). No one would now suggest that this Court be imprisoned by every particular of habeas corpus as it existed in the late 18th and 19th centuries. But recognition of that reality does not liberate us from all historical restraint. The historical evidence demonstrates that the purposes of the writ, at the time of the adoption of the Constitution, were tempered by a due regard for the finality of the judgment of the committing court. This regard was maintained substantially intact when Congress, in the Habeas Corpus Act of 1867, first extended federal habeas review to the delicate interrelations of our dual court systems.
Recent decisions, however, have tended to depreciate the importance of the finality of prior judgments in criminal cases. Kaufman, 394 U.S. at 228; Sanders v. United States, 373 U.S. 1, 8 (1963); Fay, supra, at 424. This trend may be a justifiable evolution of the use of habeas corpus where the one in state custody raises a constitutional claim bearing on his innocence. But the justification for disregarding the historic scope and function of the writ is measurably less apparent in the typical Fourth Amendment claim asserted on collateral attack. In this latter case, a convicted defendant is most often asking society to redetermine a matter with no bearing at all on the basic justice of his incarceration.
Habeas corpus indeed should provide the added assurance for a free society that no innocent man suffers an unconstitutional loss of liberty. The Court in Fay described [p257] habeas corpus as a remedy for "whatever society deems to be intolerable restraints," and recognized that those to whom the writ should be granted "are persons whom society has grievously wronged, and for whom belated liberation is little enough compensation." Id. at 401-402, 441. The Court there acknowledged that the central reason for the writ lay in remedying injustice to the individual. Recent commentators have recognized the same core concept, one noting that,
where personal liberty is involved, a democratic society . . . insists that it is less important to reach an unshakable decision than to do justice (emphasis added), [n10]
and another extolling the use of the writ in Leyra v. Denno, 347 U.S. 556 (1954), with the assertion that, "[b]ut for federal habeas corpus, these two men would have gone to their deaths for crimes of which they were found not guilty." [n11]
I am aware that history reveals no exact tie of the writ of habeas corpus to a constitutional claim relating to innocence or guilt. Traditionally, the writ was unavailable even for many constitutional pleas grounded on a claimant's innocence, while many contemporary proponents of expanded employment of the writ would permit its issuance for one whose deserved confinement was never in doubt. We are now faced, however, with the task of accommodating the historic respect for the finality of the judgment of a committing court with recent Court expansions of the role of the writ. This accommodation can best be achieved, with due regard to all of the values implicated, by recourse to the central reason for habeas corpus: the affording of means, [p258] through an extraordinary writ, of redressing an unjust incarceration.
Federal habeas review of search and seizure claims is rarely relevant to this reason. Prisoners raising Fourth Amendment claims collaterally usually are quite justly detained. The evidence obtained from searches and seizures is often "the clearest proof of guilt," with a very high content of reliability. [n12] Rarely is there any contention that the search rendered the evidence unreliable, or that its means cast doubt upon the prisoner's guilt. The words of Mr. Justice Black drive home the point:
A claim of illegal search and seizure under the Fourth Amendment is crucially different from many other constitutional rights; ordinarily, the evidence seized can in no way have been rendered untrustworthy by the means of its seizure, and, indeed, often this evidence alone establishes beyond virtually any shadow of a doubt that the defendant is guilty.
Kaufman v. United States, 394 U.S. at 237 (1969) (dissenting opinion).
Habeas corpus review of search and seizure claims thus brings a deficiency of our system of criminal justice into sharp focus: a convicted defendant asserting no Constitutional claim bearing on innocence and relying solely on an alleged unlawful search, is now entitled to federal habeas review of state conviction and the likelihood of release if the reviewing court concludes that the search was unlawful. That federal courts would actually redetermine constitutional claims bearing no relation to the prisoner's innocence with the possibility of releasing him from custody if the search is held unlawful not only defeats our societal interest in a rational legal system, but serves no compensating ends of personal justice. [p259]
This unprecedented extension of habeas corpus far beyond its historic bounds and in disregard of the writ's central purpose is an anomaly in our system sought to be justified only by extrinsic reasons which will be addressed in Part V of this opinion. But first let us look at the costs of this anomaly -- costs in terms of serious intrusions on other societal values. It is these other values that have been subordinated -- not to further justice on behalf of arguably innocent persons, but all too often to serve mechanistic rules quite unrelated to justice in a particular case. Nor are these neglected values unimportant to justice in the broadest sense or to our system of Government. They include (i) the most effective utilization of limited judicial resources, (ii) the necessity of finality in criminal trials, (iii) the minimization of friction between our federal and state systems of justice, and (iv) the maintenance of the constitutional balance upon which the doctrine of federalism is founded.
When raised on federal habeas, a claim generally has been considered by two or more tiers of state courts. It is the solemn duty of these courts, no less than federal ones, to safeguard personal liberties and consider federal claims in accord with federal law. The task which federal courts are asked to perform on habeas is thus most often one that has or should have been done before. The presumption that "if a job can be well done once, it should not be done twice" is sound, and one calculated to utilize best "the intellectual, moral, and political resources involved in the legal system." [n13] [p260]
Those resources are limited, but demand on them constantly increases. There is an insistent call on federal courts both in civil actions, many novel and complex, which affect intimately the lives of great numbers of people and, in original criminal trials and appeals which deserve our most careful attention. [n14] To the extent the federal courts are required to reexamine claims on collateral [p261] attack, [n15] they deprive primary litigants of their prompt availability and mature reflection. After all, the resources of our system are finite: their overextension jeopardizes the care and quality essential to fair adjudication.
The present scope of federal habeas corpus also has worked to defeat the interest of society in a rational point of termination for criminal litigation. Professor Amsterdam has identified some of the finality interests at stake in collateral proceedings:
They involve (a) duplication of judicial effort; (b) delay in setting the criminal proceeding at rest; (c) inconvenience and possibly danger in transporting a prisoner to the sentencing court for hearing; (d) postponed litigation of fact, hence litigation which will often be less reliable in reproducing the facts (i) respecting the post-conviction claim itself, and (ii) respecting the issue of guilt if the collateral attack succeeds in a form which allows retrial. . . .
He concluded that:
[I]n combination, these finality considerations amount to a more or less persuasive argument against the cognizability of any particular collateral [p262] claim, the strength of the argument depending upon the nature of the claim, the manner of its treatment (if any) in the conviction proceedings, and the circumstances under which collateral litigation must be had. [n16]
No effective judicial system can afford to concede the continuing theoretical possibility that there is error in every trial and that every incarceration is unfounded. At some point, the law must convey to those in custody that a wrong has been committed, that consequent punishment has been imposed, that one should no longer look back with the view to resurrecting every imaginable basis for further litigation, but rather should look forward to rehabilitation and to becoming a constructive citizen. [n17]
Nowhere should the merit of this view be more self-evident than in collateral attack on an allegedly unlawful search and seizure, where the petitioner often asks society to redetermine a claim with no relationship at all to the justness of his confinement. Professor Amsterdam has noted that, "for reasons which are common to all search and seizure claims," he "would hold even a slight finality interest sufficient to deny the collateral remedy." [n18] But, in fact, a strong finality interest militates against allowing [p263] collateral review of search and seizure claims. Apart from the duplication of resources inherent in most habeas corpus proceedings, the validity of a search and seizure claim frequently hinges on a complex matrix of events which may be difficult indeed for the habeas court to disinter, especially where, as often happens, the trial occurred years before the collateral attack and the state record is thinly sketched. [n19]
Finally, the present scope of habeas corpus tends to undermine the values inherent in our federal system of government. To the extent that every state criminal judgment is to be subject indefinitely to broad and repetitive federal oversight, we render the actions of state courts a serious disrespect in derogation of the constitutional balance between the two systems. [n20] The present expansive scope of federal habeas review has prompted no small friction between state and federal judiciaries. Justice Paul C. Reardon of the Massachusetts Supreme [p264] Judicial Court and then President of the National Center for State Courts, in identifying problems between the two systems, noted bluntly that "[t]he first, without question, is the effect of Federal habeas corpus proceedings on State courts." He spoke of the "humiliation of review from the full bench of the highest State appellate court to a single United States District Court judge." Such broad federal habeas powers encourage, in his view, the "growing denigration of the State courts and their functions in the public mind." [n21] In so speaking Justice Reardon echoed the words of Professor Bator:
I could imagine nothing more subversive of a judge's sense of responsibility, of the inner subjective conscientiousness which is so essential a part of the difficult and subtle art of judging well, than an indiscriminate [p265] acceptance of the notion that all the shots will always be called by someone else. [n22]
In my view, this Court has few more pressing responsibilities than to restore the mutual respect and the balanced sharing of responsibility between the state and federal courts which our tradition and the Constitution itself so wisely contemplate. This can be accomplished without retreat from our inherited insistence that the writ of habeas corpus retain its full vitality as a means of redressing injustice. This case involves only a relatively narrow aspect of the appropriate reach of habeas corpus. The specific issue before us, and the only one that need be decided at this time, is the extent to which a state prisoner may obtain federal habeas corpus review of a Fourth Amendment claim. Whatever may be formulated as a more comprehensive answer to the important broader issues (whether by clarifying legislation or in subsequent decisions), Mr. Justice Black has suggested what seems to me to be the appropriate threshold requirement in a case of this kind: "I would always require that the convicted defendant raise the kind of constitutional claim that casts some shadow of a doubt on his guilt." Kaufman v. United States, 394 U.S. at 242 (dissenting opinion). In a perceptive analysis, Judge Henry J. Friendly expressed a similar view. He would draw the line against habeas corpus review in the absence of a "colorable claim of innocence":
Where there is no constitutional claim bearing on innocence, the inquiry of the federal court on habeas review of a state prisoner's Fourth Amendment claim should be confined solely to the question whether the defendant was provided a fair opportunity in the state courts to raise and have adjudicated the Fourth Amendment claim. Limiting the scope of habeas review in this manner would reduce the role of the federal courts in determining the merits of constitutional claims with no relation to a petitioner's innocence, and contribute to the restoration of recently neglected values to their proper place in our criminal justice system.
The importance of the values referred to above is not questioned. What, then, is the reason which has prompted this Court in recent decisions to extend habeas corpus to Fourth Amendment claims largely in disregard of its history, as well as these values? In addressing Mr. Justice Black's dissenting view that constitutional claims raised collaterally should be relevant to the petitioner's innocence, the majority in Kaufman noted:
It [Mr. Justice Black's view] brings into question the propriety of the exclusionary rule itself. The application of that rule is not made to turn on the [p267] existence of a possibility of innocence; rather, exclusion of illegally obtained evidence is deemed necessary to protect the right of all citizens, not merely the citizen on trial, to be secure against unreasonable searches and seizures.
394 U.S. at 229. (Emphasis added.)
The exclusionary rule has occasioned much criticism, largely on grounds that its application permits guilty defendants to go free and law-breaking officers to go unpunished. [n24] The oft-asserted reason for the rule is to deter illegal searches and seizures by the police, Elkins v. United States, 364 U.S. 206, 217 (1960); Mapp v. Ohio, 367 U.S. 643, 656 (1961); Linkletter v. Walker, 381 U.S. 618, 636 (1965); Terry v. Ohio, 392 U.S. 1, 29 (1968). [n25] [p268] The efficacy of this deterrent function, however, has been brought into serious question by recent empirical research. Whatever the rule's merits on an initial trial and appeal [n26] -- a question not in issue here -- the case for [p269] collateral application of the rule is an anemic one. On collateral attack, the exclusionary rule retains its major liabilities, while the asserted benefit of the rule dissolves. For whatever deterrent function the rule may serve when applied on trial and appeal becomes greatly attenuated when, months or years afterward, the claim surfaces for collateral review. The impermissible conduct has long since occurred, and the belated wrist slap of state police by federal courts harms no one but society, on whom the convicted criminal is newly released. [n27]
Searches and seizures are an opaque area of the law: flagrant Fourth Amendment abuses will rarely escape detection, but there is a vast twilight zone with respect to which one Justice has stated that our own "decisions . . . are hardly notable for their predictability," [n28] and another has observed that this Court was "‘bifurcating elements too infinitesimal to be split.'" [n29] Serious Fourth Amendment infractions can be dealt with by state judges or by this Court on direct review. But the nonfrivolous Fourth Amendment claims that survive for collateral attack are most likely to be in this grey, twilight area, where the law is difficult for courts to apply, let alone for the policeman on the beat to understand. This is [p270] precisely the type of case where the deterrent function of the exclusionary rule is least efficacious, and where there is the least justification for freeing a duly convicted defendant. [n30]
Our decisions have not encouraged the thought that what may be an appropriate constitutional policy in one context automatically becomes such for all times and all seasons. In Linkletter v. Walker, 381 U.S. at 629, the Court recognized the compelling practical considerations against retroactive application of the exclusionary rule. Rather than viewing the rule as having eternal constitutional verity, the Court decided to
weigh the merits and demerits in each case by looking to the prior history of the rule in question, its purpose and effect, and whether retrospective operation will further or retard its operation. We believe that this approach is particularly correct with reference to the Fourth Amendment's prohibitions as to unreasonable searches and seizures.
Id. at 629.
Such a pragmatic approach compelled the Court to conclude that the rule's deterrent function would not be advanced by its retrospective application:
The misconduct of the police prior to Mapp has already occurred, and will not be corrected by releasing the prisoners involved. . . . Finally, the ruptured privacy of the victims' homes and effects cannot be restored. Reparation comes too late.
Id. at 637. See also Desist v. United States, 394 U.S. 244 (1969). The same practical, particularized analysis of the exclusionary rule's necessity also was evident in Walder v. United States, 347 U.S. 62 (1954), when the Court permitted [p271] the Government to utilize unlawfully seized evidence to impeach the credibility of a defendant who had first testified broadly in his own defense. The Court held, in effect, that the policies protected by the exclusionary rule were outweighed in this case by the need to prevent perjury and assure the integrity of proceedings at trial. The Court concluded that to apply the exclusionary rule in such circumstances "would be a perversion of the Fourth Amendment." Id. at 65. The judgment in Walder revealed most pointedly that the policies behind the exclusionary rule are neither absolute nor all-encompassing, but rather must be weighed and balanced against a competing and more compelling policy, namely the need for effective determination of truth at trial.
In sum: the case for the exclusionary rule varies with the setting in which it is imposed. It makes little sense to extend the Mapp exclusionary rule to a federal habeas proceeding where its asserted deterrent effect must be least efficacious, and its obvious harmful consequences persist in full force.
The final inquiry is whether the above position conforms to 28 U.S.C. § 2254(a) which provides:
The Supreme Court, a Justice thereof, a circuit judge, or a district court shall entertain an application for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States.
The trend in recent years has witnessed a proliferation of constitutional rights, "a vast expansion of the claims of error in criminal cases for which a resourceful defense lawyer can find a constitutional basis." [n31] Federal habeas [p272] jurisdiction has been extended far beyond anyone's expectation or intendment when the concept of "custody in violation of the Constitution," now in § 2254(a), first appeared in federal law over a century ago. [n32]
Mr. Justice Black was clearly correct in noting that
not every conviction based in part on a denial of a constitutional right is subject to attack by habeas corpus or § 2255 proceedings after a conviction has become final.
Kaufman, 394 U.S. at 232 (dissenting opinion). No evidence exists that Congress intended every allegation of a constitutional violation to afford an appropriate basis for collateral review: indeed, the latest revisions of the Federal Habeas Corpus statute in 1966 [n33] and the enactment of § 2254(a) came at the time a majority of the courts of appeals held that claims of unlawful search and seizure
"are not proper matters to be presented by a motion to vacate sentence under § 2255, but can only be properly presented by appeal from the conviction."
Id. at 220, quoting Warren v. United States, 311 F.2d 673, 675 (CA8 1963). [n34] Though the precise discussion in Kaufman concerned the claims of federal prisoners under § 2255, the then-existing principle of a distinction between review of search and seizure claims in direct and collateral proceedings clearly existed.
There is no indication that Congress intended to wipe out this distinction. Indeed, the broad purpose of the 1966 amendments pointed in the opposite direction. The report of the Senate Judiciary Committee notes that:
Although only a small number of these [habeas] applications have been found meritorious, the applications [p273] in their totality have imposed a heavy burden on the Federal courts. . . . The bill seeks to alleviate the unnecessary burden by introducing a greater degree of finality of judgments in habeas corpus proceedings.
S.Rep. No. 1797, 89th Cong., 2d Sess., 2 (1966). [n35]
The House Report states similarly that:
While in only a small number of these applications have the petitioners been successful, they nevertheless have not only imposed an unnecessary burden on the work of the Federal courts, but have also greatly interfered with the procedures and processes of the State courts by delaying, in many cases, the proper enforcement of their judgments.
H.R.Rep. No. 1892, 89th Cong., 2d Sess., 5 (1966).
This most recent congressional expression on the scope of federal habeas corpus reflected the sentiment, shared alike by judges and legislators, that the writ has overrun its historical banks to inundate the dockets of federal courts and denigrate the role of state courts. Though Congress did not address the precise question at hand, nothing in § 2254(a), the state of the law at the time of its adoption, or the historical uses of the language "custody in violation of the Constitution" from which § 2254(a) is derived, [n36] compels a holding that rulings of state courts on claims of unlawful search and [p274] seizure must be reviewed and redetermined in collateral proceedings.
Perhaps no single development of the criminal law has had consequences so profound as the escalating use, over the past two decades, of federal habeas corpus to reopen and readjudicate state criminal judgments. I have commented in Part IV above on the far-reaching consequences: the burden on the system, [n37] in terms of demands on the courts, prosecutors, defense attorneys, and other personnel and facilities; the absence of efficiency and finality in the criminal process, frustrating both the deterrent function of the law and the effectiveness of rehabilitation; the undue subordination of state courts, with the resulting exacerbation of state-federal relations; and the subtle erosion of the doctrine of federalism itself. Perhaps the single most disquieting consequence of open-ended habeas review is reflected in the prescience of Mr. Justice Jackson's warning that "[i]t must prejudice the occasional meritorious application to be buried in a flood of worthless ones." [n38]
If these consequences flowed from the safeguarding of constitutional claims of innocence, they should, of course, be accepted as a tolerable price to pay for cherished standards of justice at the same time that efforts are pursued to find more rational procedures. Yet, as illustrated by the case before us today, the question on habeas corpus is [p275] too rarely whether the prisoner was innocent of the crime for which he was convicted, [n39] and too frequently whether some evidence of undoubted probative value has been admitted in violation of an exclusionary rule ritualistically applied without due regard to whether it has the slightest likelihood of achieving its avowed prophylactic purpose.
It is this paradox of a system, which so often seems to subordinate substance to form, that increasingly provokes criticism and lack of confidence. Indeed, it is difficult to explain why a system of criminal justice deserves respect which allows repetitive reviews of convictions long since held to have been final at the end of the normal process of trial and appeal where the basis for reexamination is not even that the convicted defendant was innocent. There has been a halo about the "Great Writ" that no one would wish to dim. Yet one must wonder whether the stretching of its use far beyond any justifiable purpose will not, in the end, weaken, rather than strengthen, the writ's vitality.
1. Cases cited as examples included Mancusi v. DeForte, 392 U.S. 364 (1968); Carafas v. LaVallee, 391 U.S. 234 (1968); Warden v. Hayden, 387 U.S. 294 (1967).
2. The Act of Feb. 5, 1867, c. 28, § 1, 14 Stat. 385, provided that
the several courts of the United States . . . within their respective jurisdictions, in addition to the authority already conferred by law, shall have power to grant writs of habeas corpus in all cases where any person may be restrained of his or her liberty in violation of the constitution, or of any treaty or law of the United States. . . .
Federal habeas review for those in state custody is now authorized by 28 U.S.C. § 2254(a):
The Supreme Court, a Justice thereof, a circuit judge, or a district court shall entertain an application for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States.
3. Bator, Finality in Criminal Law and Federal Habeas Corpus for State Prisoners, 76 Harv.L.Rev. 441, 466 (1963); Oaks, Legal History in the High Court -- Habeas Corpus, 64 Mich.L.Rev. 451, 451-456 (1966).
4. Oaks, supra, n. 3, at 452.
5. Professor Paul M. Bator of Harvard Law School and Professor Dallin H. Oaks formerly of the University of Chicago School of Law. Citations to the relevant articles are in n. 3, supra.
6. Oaks, supra, n. 3, at 468.
7. Bator, supra, n. 3, at 475-476.
8. Id. at 475.
9. H.R.Rep. No. 730, 48th Cong., 1st Sess., 5 (1884), quoted in Bator, supra, n. 3, at 477.
10. Pollak, Proposals to Curtail Federal Habeas Corpus for State Prisoners: Collateral Attack on the Great Writ, 66 Yale L.J. 50, 65 (1956).
11. Reitz, Federal Habeas Corpus: Post-conviction Remedy for State Prisoners, 108 U.Pa.L.Rev. 461, 497 (1960).
12. Friendly, Is Innocence Irrelevant? Collateral Attack on Criminal Judgments, 38 U.Chi.L.Rev. 142, 160 (1970).
13. Bator, supra, n. 3, at 451.
The conventional justifications for extending federal habeas corpus to afford collateral review of state court judgments were summarized in Kaufman v. United States, 394 U.S. 217, 225-226, as follows:
[T] he necessity that federal courts have the "last say" with respect to questions of federal law, the inadequacy of state procedures to raise and preserve federal claims, the concern that state judges may be unsympathetic to federally created rights, the institutional constraints on the exercise of this Court's certiorari jurisdiction to review state convictions. . . .
Each of these justifications has merit in certain situations, although the asserted inadequacy of state procedures and unsympathetic attitude of state judges are far less realistic grounds of concern than in years past. The issue, fundamentally, is one of perspective and a rational balancing. The appropriateness of federal collateral review is evident in many instances. But it hardly follows that, in order to promote the ends of individual justice which are the foremost concerns of the writ, it is necessary to extend the scope of habeas review indiscriminately . This is especially true with respect to federal review of Fourth Amendment claims, with the consequent denigration of other important societal values and interests.
14. Briefly, civil filings in United States district courts increased from 58,293 in 1961 to 96,173 in 1972. Total appeals commenced in the United States courts of appeals advanced from 4,204 in 1961 to 14,535 in 1972. Petitions for federal habeas corpus filed by state prisoners jumped from 1,020 in 1961 to 7,949 in 1972. Though habeas petitions filed by state prisoners did decline from 9,063 in 1970 to 7,949 in 1972, the overall increase from 1,000 at the start of the last decade is formidable. Furthermore, civil rights prisoner petitions under 42 U.S.C. § 1983 increased from 1,072 to 3,348 in the past five years. Some of these challenged the fact and duration of confinement and sought release from prison, and must now be brought as actions for habeas corpus, Preiser v. Rodriguez, 411 U.S. 475 (1973). See 1972 Annual Report of the Director of the Administrative Office of the United States Courts II-5, II-22, II-232.
15. MR. CHIEF JUSTICE BURGER has illustrated the absurd extent to which relitigation is sometimes allowed:
In some of these multiple trial and appeal cases [on collateral attack], the accused continued his warfare with society for eight, nine, ten years and more. In one case, . . . more than fifty appellate judges reviewed the case on appeals.
Address before the Association of the Bar of the City of New York, N.Y.L.J. Feb.19, 1970, p. 1.
The English courts, "long admired for [their] fair treatment of accused persons," have never so extended habeas corpus. Friendly, supra, n. 12, at 145.
16. Amsterdam, Search, Seizure, and Section 2255: A Comment, 112 U.Pa.L.Rev. 378, 383-384 (1964). The article addresses the problem of collateral relief for federal prisoners, but its rationale applies forcefully to federal habeas for state prisoners as well.
17. Mr. Justice Harlan put it very well:
Both the individual criminal defendant and society have an interest in insuring that there will at some point be the certainty that comes with an end to litigation, and that attention will ultimately be focused not on whether a conviction was free from error, but rather on whether the prisoner can be restored to a useful place in the community.
Sanders v. United States, 373 U.S. 1, 24-25 (1963) (dissenting opinion).
18. Supra, n. 16, at 388.
19. The latter occurs for various reasons, namely, failure of the accused to raise the claim at trial, a determination by the state courts that the claim did not merit a hearing, or a recent decision of this Court extending rights of the accused (although, on Fourth Amendment claims, such decisions have seldom been applied retroactively, see, e.g., Linkletter v. Walker, 381 U.S. 618 (1965)).
20. The dispersion of power between State and Federal Governments is constitutionally premised, as Mr. Justice Harlan observed:
[I]t would surely be shallow not to recognize that the structure of our political system accounts no less for the free society we have. Indeed, it was upon the structure of government that the founders primarily focused in writing the Constitution. Out of bitter experience, they were suspicious of every form of all-powerful central authority, and they sought to assure that such a government would never exist in this country by structuring the federal establishment so as to diffuse power between the executive, legislative, and judicial branches. The diffusion of power between federal and state authority serves the same ends, and takes on added significance as the size of the federal bureaucracy continues to grow.
Thoughts at a Dedication: Keeping the Judicial Function in Balance, 49 A.B.A.J. 943, 943-944 (1963).
The Justice recognized that problems of habeas corpus jurisdiction were "of constitutional dimensions going to the heart of the division of judicial powers in a federal system." Fay v. Noia, 372 U.S. 391, 464 (1963) (dissenting opinion). Nor have such perceptions ever been the product of but a single Justice. As the Court noted in a historic decision on the conflicting realms of state and federal judicial power:
[T]he Constitution of the United States . . . recognizes and preserves the autonomy and independence of the States -- independence in their legislative and independence in their judicial departments. Supervision over either the legislative or the judicial action of the States is in no case permissible except as to matters by the Constitution specifically authorized or delegated to the United States. Any interference with either, except as thus permitted, is an invasion of the authority of the State and, to that extent, a denial of its independence.
21. Address at the annual dinner of the Section of Judicial Administration, American Bar Association, San Francisco, California, Aug. 14, 1972, pp 5, 9, and 10.
22. Bator, supra, n. 3, at 451.
23. Friendly, supra, n. 12, at 142. Judge Friendly's thesis, as he develops it, would encompass collateral attack broadly both within the federal system and with respect to federal habeas for state prisoners. Subject to the exceptions carefully delineated in his article, Judge Friendly would apply the criterion of a "colorable showing of innocence" to any collateral attack of a conviction, including claims under the Fifth and Sixth, as well as the Fourth, Amendments. Id. at 151-157. In this case, we need not consider anything other than the Fourth Amendment claims.
24. See Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388, 411 (BURGER, C.J., dissenting); Paulsen, The Exclusionary Rule and Misconduct by the Police, 52 J.Crim.L.C. & P.S. 255, 256 (1961); see also J. Wilson, Varieties of Police Behavior (1968); 8 J. Wigmore, Evidence § 2184, pp.51-52 (J. McNaughton ed.1961), and H. Friendly, Benchmarks 260-261 (1967), suggesting that even at trial the exclusionary rule should be limited to exclusion of "the fruit of activity intentionally or flagrantly illegal." But see Kamisar, Public Safety v. Individual Liberties: Some "Facts" and "Theories," 53 J.Crim.L.C. & P.S. 171, 188-190 (1962), and Kamisar, On the Tactics of Police-Prosecution Oriented Critics of the Courts, 49 Cornell L.Q. 436 (1964).
25. These expressions antedated the only scholarly empirical research, MR. JUSTICE STEWART having noted in Elkins v. United States, 364 U.S. 206, 218 (1960), that "[e]mpirical statistics are not available" as to the efficacy of the rule -- a situation which continued until Professor Oaks' study. Indeed, in referring to the basis for the exclusionary rule, Professor Oaks noted that it has been supported not by facts, but by "recourse to polemic, rhetoric, and intuition." Studying the Exclusionary Rule in Search and Seizure, 37 U.Chi.L.Rev. 665, 755 (1970). See also Burger, Who Will Watch the Watchman?, 14 Am.U.L.Rev. 1 (1964).
I mention the controversy over the exclusionary rule not to suggest here its total abandonment (certainly not in the absence of some other deterrent to deviant police conduct), but rather to emphasize its precarious and undemonstrated basis, especially when applied to a Fourth Amendment claim on federal habeas review of a state court decision.
26. The most searching empirical study of the efficacy of the exclusionary rule was made by Professor Oaks, who concluded that "[a]s a device for directly deterring illegal searches and seizures by the police, the exclusionary rule is a failure." Supra, n. 25, at 755. Professor Oaks, though recognizing that conclusive data may not yet be available, summarized the results of his study as follows:
There is no reason to expect the rule to have any direct effect on the overwhelming majority of police conduct that is not meant to result in prosecutions, and there is hardly any evidence that the rule exerts any deterrent effect on the small fraction of law enforcement activity that is aimed at prosecution. What is known about the deterrent effect of sanctions suggests that the exclusionary rule operates under conditions that are extremely unfavorable for deterring the police. The harshest criticism of the rule is that it is ineffective. It is the sole means of enforcing the essential guarantees of freedom from unreasonable arrests and searches and seizures by law enforcement officers, and it is a failure in that vital task.
The use of the exclusionary rule imposes excessive costs on the criminal justice system. It provides no recompense for the innocent, and it frees the guilty. It creates the occasion and incentive for large-scale lying by law enforcement officers. It diverts the focus of the criminal prosecution from the guilt or innocence of the defend: ant to a trial of the police. Only a system with limitless patience with irrationality could tolerate the fact that, where there has been one wrong, the defendant's, he will be punished, but where there have been two wrongs, the defendant's and the officer's, both will go free. This would not be an excessive cost for an effective remedy against police misconduct, but it is a prohibitive price to pay for an illusory one.
Id. at 755. Despite a conviction that the exclusionary rule is a "failure," Professor Oaks would not abolish it altogether until there is something to take its place. He recommends "an effective tort remedy against the offending officer or his employer." He notes that such a
tort remedy would give courts an occasion to rule on the content of constitutional rights (the Canadian example shows how), and it would provide the real consequence needed to give credibility to the guarantee.
Id. at 756-757.
As the exclusionary rule is applied time after time, it seems that its deterrent efficacy at some stage reaches a point of diminishing returns, and, beyond that point, its continued application is a public nuisance.
Amsterdam, supra, n. 16, at 389.
28. Ker v. California, 374 U.S. 23, 45 (1963) (Harlan, J., concurring in result).
29. Coolidge v. New Hampshire, 403 U.S. 443, 493 (1971) (opinion of BURGER, C.J.). THE CHIEF JUSTICE was quoting Mr. Justice Stone of the Minnesota Supreme Court.
30. Friendly, supra, n. 12, at 162-163.
31. Friendly, supra, n. 12, at 156.
32. See Part II, supra.
33. The 1966 revision of the Federal Habeas Corpus statute enacted, among other things, the present 28 U.S.C. §§ 2254(a), (d), (e), and (f).
34. See Kaufman, supra, at 220-221, nn. 3 and 4, for a listing of the respective positions of the courts of appeals.
35. The letter from Circuit Judge Orie L. Phillips, Chairman of the Committee on Habeas Corpus of the Judicial Conference of the United States, which sponsored the 1966 legislation, to the Chairman of the Senate Subcommittee on Improvements in Judicial Machinery also strongly emphasized the necessity of expediting "the determination in Federal courts of nonmeritorious and repetitious applications for the writ by State court prisoners." S.Rep. No. 1797, 89th Cong., 2d Sess., 5 (1966).
36. See Part II, supra.
37. Mr. Justice Jackson, concurring in the result 20 years ago in Brown v. Allen, 344 U.S. 443, 532 (1953), lamented the
floods of stale, frivolous and repetitious petitions [for federal habeas corpus by state prisoners which] inundate the docket of the lower courts and swell our own.
Id. at 536. The inundation which concerned Mr. Justice Jackson consisted of 541 such petitions. In 1971, the latest year for which figures are available, state prisoners alone filed 7,949 petitions for habeas in federal district courts, over 14 times the number filed when Mr. Justice Jackson voiced his misgivings.
38. Brown v. Allen, supra, at 537.
39. Commenting on this distortion of our criminal justice system, Justice Walter Schaefer of the Illinois Supreme Court has said:
What bothers me is that almost never do we have a genuine issue of guilt or innocence today. The system has so changed that what we are doing in the courtroom is trying the conduct of the police and that of the prosecutor all along the line.