Is Fairness Irrelevant? The Evisceration of Federal Habeas Corpus Review and Limits on the Ability of State Courts to Protect Fundamental Rights

Abstract

John Randolph Tucker, for whom this lecture series is named, when asked how he could serve as counsel for the Haymarket Anarchists in Spies v. Illinois, reportedly answered: "I do not defend anarchy. I defend the Constitution. Such a voice is needed in this country's crime debate today to remind Americans that those who argue for fairness in our criminal justice system do not defend crime, they defend the Constitution. Such a voice is needed because, increasingly, due process and other guarantees of the Bill of Rights are regarded as little more than inconvenient impediments to ridding our society of murderers, rapists, robbers, and other criminals. That voice has been missing in the exceptionally one-sided debate on crime that has dominated politics in the United States for the last thirty years. Americans have been told that the answer to the crime problem is longer prison terms, harsher conditions of imprisonment, greater use of the death penalty, less due process, and less judicial review. There has been virtually no debate among politicians about the wisdom of these measures - whether they constitute an effective crime control policy or whether they will actually make Americans safer in their homes and on the streets.