Orrin Hatch: “Mr. President, I think that part of the disagreement we have with respect to the appropriate standard of review in…”

“Mr. President, I think that part of the disagreement we have with respect to the appropriate standard of review in habeas petitions involves differing visions as to the proper role of habeas review. Federal habeas review takes place only after there has been a trial, direct review by a State appellate court, a second review by a State supreme court, and than a petition to the U.S. Supreme Court. Thus we have a trial and at least three levels of appellate review. In a capital case, the petitioner often files a clemency petition, so the State executive branch also has an opportunity to review the case. But that is not the end. In virtually every State, a postconviction collateral proceeding exists. In other words, the prisoner can file a habeas corpus petition in State court. That petition is routinely subject to appellate review by an intermediate court and the State supreme court. The prisoner may then file a second petition in the U.S. Supreme Court, and may also, of course, seek a second review by the Governor. So, after conviction, we have at least six levels of review by State courts and two rounds of review--at least in capital cases--by the State executive.”