360
Stevens, J., concurring in judgment
the federal courts to reach and redress constitutional errors affects the legitimacy of the death penalty itself. Since Gregg v. Georgia, the Court has upheld the constitutionality of the death penalty where sufficient procedural safeguards exist to ensure that the State's administration of the penalty is neither arbitrary nor capricious. See 428 U. S. 153, 189, 195 (1976) ( joint opinion); Lockett v. Ohio, 438 U. S. 586, 601 (1978). At the time those decisions issued, federal courts possessed much broader authority than they do today to address claims of constitutional error on habeas review and, therefore, to examine the adequacy of a State's capital scheme and the fairness and reliability of its decision to impose the death penalty in a particular case. The more the Court constrains the federal courts' power to reach the constitutional claims of those sentenced to death, the more the Court undermines the very legitimacy of capital punishment itself.
Justice Stevens, with whom Justice Blackmun and Justice O'Connor join, concurring in the judgment.
Only 10 years ago, the Court reemphasized that "[t]he writ of habeas corpus indisputably holds an honored position in our jurisprudence. Tracing its roots deep into English common law, it claims a place in Art. I of our Constitution. Today, as in prior centuries, the writ is a bulwark against convictions that violate 'fundamental fairness.' Wainwright v. Sykes, 433 U. S. [72,] 97 [(1977)] (Stevens, J., concurring)." Engle v. Isaac, 456 U. S. 107, 126 (1982). It is this centrality of "fundamental fairness" that has led the Court to hold that habeas review of a defaulted, successive, or abusive claim is available, even absent a showing of cause, if failure to consider the claim would result in a fundamental miscarriage of justice. See Sanders v. United States, 373 U. S. 1, 17-18 (1963); Engle, 456 U. S., at 135.
In Murray v. Carrier, 477 U. S. 478, 495, 496 (1986), the Court ruled that the concept of "fundamental miscarriage of justice" applies to those cases in which the defendant was
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