Coleman v. Balkcom, 451 U.S. 949 (1981)

JUSTICE STEVENS, concurring.

The Court’s management of its discretionary docket is a subject that merits reexamination from time to time in the light of changes that affect the business of the federal judiciary. See, e.g., Watt v. Alaska, 451 U.S. 259, 273 (STEVENS, J., concurring), and Singleton v. Commissioner, 439 U.S. 940, 942-946 (opinion of STEVENS, J.). Opinions dissenting from the denial of certiorari sometimes create the impression that we review fewer cases than we should; I hold the opposite view. Today JUSTICE REHNQUIST advances the proposition, as I understand his dissenting opinion, that we should promptly grant certiorari and decide the merits of every capital case coming from the state courts in order to expedite the administration of the death penalty.

In my judgment, the Court wisely rejects this proposal. In the last 10 months, over 90 certiorari petitions have been filed in capital cases. If we were to hear even a substantial percentage of these cases on the merits, they would consume over half of this Court’s argument calendar. Although the interest in protecting the constitutional rights of persons sentenced to death is properly characterized as a federal interest, the interest in imposing the death sentence is essentially a state interest. Because the persons on death row are concentrated in only a few States, because some States have no capital punishment at all, and because the range of capital offenses differs in different States, it is quite clear that all States do not share the same interest in accelerating the execution rate. This Court’s primary function is to adjudicate federal questions. To make the primary mission of this Court the vindication of certain States’ interests in carrying out the death penalty would be an improper allocation of the Court’s limited resources.

Moreover, one may also question whether JUSTICE REHNQUIST’s proposal would accomplish its intended purpose. As I understand his proposal, it would preclude the federal district courts from granting writs of habeas corpus in any capital cases on any ground that had been presented to and rejected by this Court. Because this Court is not equipped to process all of these cases as expeditiously as the several district courts, it is most unlikely that this innovative proposal would dramatically accelerate the execution of the persons on death row.{1}

One of the causes of delay in the conclusion of litigation in capital cases has been the fact that the enactment of new state legislation after this Court’s decision in Furman v. Georgia, 408 U.S. 238, generated a number of novel constitutional questions. Although those questions have not been difficult for three Members of the Court,{2} other Justices have found a number of these questions sufficiently important and difficult to justify the delays associated with review in this Court. The principal delay -- a matter of four years -- was the period between the entry of the stays in the Furman litigation in 1972, and the decisions in July, 1976, in Gregg v. Georgia, 428 U.S. 153; Proffitt v. Florida, 428 U.S. 242, and Jurek v. Texas, 428 U.S. 262, in which the constitutionality of the death penalty was ultimately sustained. Following that basic holding, the Court has also decided several other cases presenting substantial constitutional issues relating to capital punishment statutes;{3} presumably those issues will no longer detain the state or federal courts in their consideration of cases in which the death penalty has been imposed.{4} One therefore should not assume that the delays of the past few years will necessarily be reflected in the future if the various state authorities act with all possible diligence.{5}

The deterrent value of any punishment is, of course, related to the promptness with which it is inflicted. In capital cases, however, the punishment is inflicted in two stages. Imprisonment follows immediately after conviction; but the execution normally does not take place until after the conclusion of post-trial proceedings in the trial court, direct and collateral review in the state judicial system, collateral review in the federal judicial system, and clemency review by the executive department of the State. However critical one may be of these protracted post-trial procedures, it seems inevitable that there must be a significant period of incarceration on death row during the interval between sentencing and execution. If the death sentence is ultimately set aside or its execution delayed for a prolonged period, the imprisonment during that period is nevertheless a significant form of punishment. Indeed, the deterrent value of incarceration during that period of uncertainty may well be comparable to the consequences of the ultimate step itself. In all events, what is at stake in this procedural debate is the length of that period of incarceration, rather than the question whether the offender shall be severely punished.

How promptly a diligent prosecutor can complete all of the proceedings necessary to carry out a death sentence is still uncertain. Much of the delay associated with past litigation should not reoccur in cases that merely raise issues that have now been resolved. As is true of all other types of litigation as well, however, inevitably new issues arise that will be sufficiently important and difficult to require deliberation before they are fully resolved. This Court should endeavor to conclude capital cases -- like all other litigation -- as promptly as possible. We must, however, also be as sure as possible that novel procedural shortcuts have not permitted error of a constitutional magnitude to occur. For, after all, death cases are indeed different in kind from all other litigation. The penalty, once imposed, is irrevocable. In balance, therefore, I think the Court wisely declines to select this group of cases in which to experiment with accelerated procedures. Accordingly, I concur in the order denying certiorari.

1. The statute as amended, effective February 15, 1980, permits service of process "at any place within the state." 1980 Ga.Laws 71-72. Petitioner’s hearing was held prior to that date.

2. It is true that Rule 45(e)(1) of the Federal Rules of Civil Procedure limits service of district court subpoenas to 100 miles of the hearing site. But, under 28 U.S.C. § 2241(d), an individual has the option of filing his petition for a writ of habeas corpus in the district where the conviction occurred, rather than the one where he is incarcerated. The Georgia statutory scheme challenged in this case does not include that option.

3. Adhering to my view that the death penalty is in all circumstances cruel and unusual punishment, I would in any event grant the petition for certiorari and vacate the judgment below insofar as it leaves undisturbed the death sentence.

4. Washington v. Texas, 388 U.S. 14, 17-19 (1967).

5. Because Georgia law now permits service anywhere in the State, it cannot fairly be argued that requiring compulsory process to force witnesses to appear would be contrary to any state policy. It is no longer true, as the State asserts in its brief in opposition, that the 150-mile limit reflects a legislative determination concerning "the interests of sparing undue burdens to witnesses and of establishing realistic boundaries to the jurisdictional reach of the trial courts."