AuthorPryor, William H., Jr.
PositionResponse to article by Diane P. Wood in this issue, p. 1809 and Henry J. Friendly, University of Chicago Law Review, vol. 38, p. 142, 1970


Judge Diane Wood provides, in her characteristically efficient prose, a thoughtful overview of the history of the Great Writ in service of a thesis that her essay otherwise fails to support. Judge Wood invokes Judge Henry Friendly's classic article, Is Innocence Irrelevant? Collateral Attack on Criminal Judgments, (1) to suggest that the writ of habeas corpus should be expanded to allow federal courts to review the petitions of state prisoners who allege their actual innocence without otherwise identifying any violation of federal law in securingtheir convictions. (2) But that thesis cannot be squared with the proposal Judge Friendly championed in his article. Nor is it consistent with the limited jurisdiction of the federal courts. And Judge Wood's essay fails to make the case for how her proposed expansion of the writ would work or whetherit would even likely result in the grant of relief to a substantial number ofprisoners whose innocence would otherwise go undetected. If anything, Judge Friendly's case for restricting the writ remains compelling though unfulfilled.


Judge Wood advocates an expansion of the writ of habeas corpus to allow federal courts to review the petitions of state prisoners who allege their actual innocence without otherwise identifying any violation of federal law in securing their convictions. She argues that a claim of innocence "should stand at the top of the hierarchy of reasons for granting relief," "well above" a claimthat the state violated one of the procedural rights guaranteed to criminal defendants in the Bill of Rights. (3) A "sensible treatment" of the issue, she maintains,would involve opening the door to a freestanding claim of innocence, but only if the prisoner satisfied "[a] clear and demanding threshold standard." (4) In her view, "[t]he rule of law itself demands no less." (5)

To make her case for expanding the Great Writ to allow freestanding claims of innocence, Judge Wood relies on an unlikely authority: Judge Friendly's classic article advocating a significant restriction of the writ. (6) A half-century ago, motivated by the "explosion of collateral attack" in federal courts, Judge Friendly endeavored to chart "the right road for the future." (7) Thatroad involved eliminating collateral review for many claims of constitutional error by convicted prisoners, save for those claims involving a total breakdown of the criminal process, errors outside the record that cannot be correctedon appeal, procedures that forbid defendants to raise constitutional claims at trial, and retroactive constitutional rules of criminal procedure. (8) Outside of those narrow circumstances, Judge Friendly proposed a new prerequisite for a prisoner's federal petition: proof that the prisoner is innocent of his crime of conviction. As he put it, "convictions should be subjectto collateral attack only when the prisoner supplements his constitutional plea with a colorable claim of innocence." (9)

Judge Friendly argued that endlessly revisiting criminal convictions has many negative consequences and for that reason "carries a serious burden of justification." (10) It undermines the educational and deterrent functions of the criminal law, poses great difficulties in accurately determining the facts long after the commission of the crime, and imposes a tremendous drain on public resources for vanishingly small rates of error correction. (11) The ease with which prisoners may challenge their convictions also means that "the occasional meritorious application" is destined "to be buried in a flood of worthless ones." (12) And society has an interest in the finality and repose that come with an end to litigating the validity of a criminal judgment. (13) In the light of those costs, Judge Friendly proposed requiring habeas petitioners to supplement their claims of constitutional error with proof of innocence, which "would enable courts... to screen out rather rapidly a great multitude of applications not deserving their attention and devote their time to those few where injustice may have been done." (14)

Judge Wood proposes something quite different from what Judge Friendlyhad in mind. Judge Wood suggests that freestanding claims of innocence be added to the many existing grounds for collateral relief. (15) Judge Friendlyproposed, in contrast, eliminating many existing grounds for collateral relief unless the prisoner could "supplement[ ]" his constitutional claim with a colorable claim of innocence. (16) In short, Judge Wood has turned Judge Friendly's proposal on its head.

Judge Wood suggests that it is "unclear" whether Judge Friendly endorsed a freestanding claim of innocence in collateral review as opposed to only a "gateway" claim of innocence. (17) But Judge Friendly could not have been clearer that he viewed innocence only as a necessary prerequisite to habeas relief, not as a basis for relief in its own right. He insisted that a prisoner"supplement[ ]" his constitutional claim with a showing of innocence, makingclear that both elements were required. (18) He proposed granting relief only for "the kind of constitutional claim that casts some shadow of a doubt"on the defendant's guilt. (19) And he explained that there was "no sufficient reason for federal intervention on behalf of a state prisoner who raised or had an opportunity to raise his constitutional claim in the state courts, in the absence of a colorable showing of innocence." (20) Apart from a small class of grievous constitutional violations, Judge Friendly would have required proof of both a violation of federal law in securing a prisoner's conviction and actual innocence as prerequisites for habeas relief.

Judge Friendly's article asked whether innocence was irrelevant, not whether constitutional error was irrelevant. (21) Indeed, Judge Friendly's goal of "halting the inundation" of federal-habeas petitions makes sense only if we understand his proposal for proof of innocence as serving a gatekeeping function. (22) As Judge Wood acknowledges, creating a freestanding claim of innocencewould increase the risk "that hordes of prisoners would raise frivolous claims of innocence, and that the courts would drown" in the flood of petitions--the very problem Judge Friendly sought to remedy. (23)


JudgeWood's proposal is also in deep tension with the limited jurisdiction of federal courts. Although her core premise is that actual innocence "[s]urely... should stand at the top of the hierarchy of reasons for granting relief, even at such a late stage as a collateral petition," (24) she never explains how federal courts possess that authority. As courts of limited jurisdiction, federal courts possess only the power that arises from the Constitution and federal statute. (25) And neither the Constitution nor federal law empowers the federal courts with the right to grant writs of habeas corpus on the basis of innocence alone.

Support for a right to habeas relief because of actual innocence cannot be found in the Constitution itself. Although the Constitution secures a right to habeas corpus through the Suspension Clause, (26) Judge Friendly explained that "the writ protected by the suspension clause is the writ as known to the framers." (27) And as he explained, a "fundamental principle[ ]" of habeas corpus at the founding was that "once a person had been convicted by a superior court...

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