Justice Delayed or Justice Denied? A Contemporary Review of Capital Habeas Corpus

In the last year, researchers released two reports about capital cases and habeas corpus. Together, these studies offer a contemporary snapshot of postconviction review and illustrate the influence of state collateral processes on capital habeas litigation in the federal courts. This essay examines those new findings, seeking to pair the studies to understand how the processing of capital habeas petitions has changed since the last wave of national reform and to explain why the courts differ in the time and attention they give these cases. Although capital habeas-corpus petitions now take twice as long to complete in the federal courts as they did over a decade ago, the new studies report considerable geographic disparities in the processing of capital habeas petitions and also point to sources that lie in state, not federal, litigation. The federal courts must not only pick up the pieces when states fail at collateral review, but also, in occasionally taking their time to review habeas matters more thoroughly, ensure that due process means as much in practice as it does in theory.