Cite as: 505 U. S. 333 (1992)
Blackmun, J., concurring in judgment
See also Patchel, The New Habeas, 42 Hastings L. J. 941, 972 (1991).
Only by returning to the federal courts' central and traditional function on habeas review, evaluating claims of constitutional error, can the Court ensure that the ends of justice are served and that fundamental miscarriages of justice do not go unremedied. The Court would do well to heed Justice Black's admonition: "[I]t is never too late for courts in habeas corpus proceedings to look straight through procedural screens in order to prevent forfeiture of life or liberty in flagrant defiance of the Constitution." Brown v. Allen, 344 U. S. 443, 554 (1953) (dissenting opinion).2
II
A
When I was on the United States Court of Appeals for the Eighth Circuit, I once observed, in the course of reviewing a death sentence on a writ of habeas corpus, that the decisional process in a capital case is "particularly excruciating" for someone "who is not personally convinced of the rightness of capital punishment and who questions it as an effective deterrent." Maxwell v. Bishop, 398 F. 2d 138, 153-154 (1968), vacated, 398 U. S. 262 (1970). At the same time, however, I stated my then belief that "the advisability of capital punishment is a policy matter ordinarily to be resolved by the legislature." Id., at 154. Four years later, as a Member of this Court, I echoed those sentiments in my separate dissenting opinion in Furman v. Georgia, 408 U. S. 238, 405 (1972). Although I reiterated my personal distaste for the
2 Notwithstanding my view that the Court has erred in narrowing the concept of a "fundamental miscarriage of justice" to cases of "actual innocence," I have attempted faithfully to apply the "actual innocence" standard in prior cases. See, e. g., Dugger v. Adams, 489 U. S. 401, 424, n. 15 (1989) (dissenting opinion). I therefore join Justice Stevens' analysis of the "actual innocence" standard and his application of that standard to the facts of this case. See post, p. 360.
357
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