Habeas Corpus - A Shout Out to Habeas

Last week, the DC Sniper, John Alan Muhammad, was executed.  The execution date was set pretty quickly.  In fact, Muhammad's timely cert. petition from his direct appeal was still pending when the date was set.  This means, obviously, that Muhammad was never even given a chance to bring a first habeas petition.

As a result, the Court was forced to expedite its consideration of the cert. petition.  On November 9, 2009, the Court issued an opinion denying cert.  It was in an "opinion" format because Justice Stevens, joined by Ginsburg and Sotomayor, issued an opinion respecting the denial of cert. 

Quick summary: they agreed that cert. should be denied but they were not happy about the timing of the execution. 

In the opinion, Stevens gives a shout out to the importance of habeas corpus.  He says that he believes that the Supreme Court should adopt a policy of granting stays in all death penalty cases until the Court has at least had a chance to consider a first federal habeas petition.  Here's what he wrote:

I continue to believe that the Court would be wise to adopt a practice of staying all executions scheduled in advance of the completion of our review of a capital defendant’s first application for a federal writ of habeas corpus.See, e.g., Emmett v. Kelly, 552 U. S. 942 (2007) (STEVENS, J., joined by GINSBURG, J., respecting denial of certiorari); Breard v. Greene, 523 U. S. 371, 379 (1998) (STEVENS, J., dissenting). Such a practice would give meaningful effect to the distinction Congress has drawn between first and successive habeas petitions. See 28 U.S.C. §2244(b). It would also serve the interests of avoiding irreversible error, facilitating the efficient management of our docket, and preserving basic fairness by ensuring death row inmates receive the same procedural safeguards that ordinary inmates receive.

All of that is nice to hear around here that at least these three judges view habeas as an integral part of the process and not just an annoying obstacle that's getting in the way of a speedy execution.

But there is also something important to note in this decision.  This appears to be at least the third time that Stevens has issued this type of opinion.  In 1998, he issued the opinion alone as a dissenting judge.  In 2007, Ginsburg joined him in one of these opinions respecting denial of cert.  Now, in 2009, Ginsburg and Sotomayor joined him.  So, slowly, he is gaining support for this idea.  And it is nice to see Sotomayor joining this opinion.  Maybe I was being a little too hard on her (here and here) during the confirmation battle.  Maybe.  I guess it's still a little too early to tell.  But, so far, there has been some positive signs (for example, see this).