Washington Law Review


Ellyde Roko


In 1995, Judge Betty Binns Fletcher posed a question: In the context of the death penalty, can justice be done? She did not answer the question at the time. However, an examination of the procedural hurdles now facing condemned inmates seeking review of claims of constitutional violations suggests the answer is no. Too often courts, including the Supreme Court, have favored finality over fairness, elevating strict adherence to procedural rules over the responsibility to make sure justice is done. Nowhere is the problem clearer than in the arena of actual innocence, where the failure to consider a condemned inmate’s claim on the merits could lead to the execution of an innocent person. This Article argues that the Supreme Court’s 2009 response to a petition for an original writ of habeas corpus in In re Davis1 shows that courts have gone too far. Rather than merely weeding out frivolous claims or showing deference to reasoned state court decisions, federal courts have allowed arcane procedural rules to prevent even meritorious claims from being heard. The Supreme Court’s rare intervention should encourage courts to interpret procedural rules less stringently in an effort to make sure justice is done.

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