This article was prompted by the March 5, 1990 decisions of the United States Supreme Court in Butler v. McKellar and Saffle v. Parks, which may well significantly limit the scope of federal habeas corpus review. It is evident that the Court will now allow some constitutional errors, which concededly occurred during the course of a state criminal trial, to be ignored and to go unredressed in the federal courts. In purporting to protect the state's interest in finality, and in its apparent willingness to trust a state court's judgment on some constitutional questions, the Supreme Court has seemingly returned the issue of whether these particular federal constitutional violations should be redressed to the same state court that had erred in the first instance. As in the above cases, where the death sentence had been imposed, it now appears that the state will decide what, if any, relief it wishes to provide for some constitutional errors occurring during the course of a capital prosecution.

These cases, along with previous decisions of the Supreme Court limiting the availability of federal habeas corpus review, are of great concern, particularly with respect to capital litigation. It is the thesis of this article that, in many jurisdictions, the combination of presently inadequate state appellate review and now further curtailed federal court review will create a substantial risk that innocent individuals and those undeserving of death, or arbitrarily sentenced to death, will be executed.

To alleviate this risk of error in capital sentencing, and to avoid such clearly unacceptable and inappropriate executions of our citizens, it is essential that a state take steps to provide some mechanism of review of these issues. This article suggests, and rather briefly examines, two methods of providing that assurance.

First, this article advocates that states, which now must assume responsibilities that they may well have relied on the federal courts to carry out, must re-evaluate the adequacy of post-conviction mechanisms within their judicial system to address these concerns. In many jurisdictions, such as Ohio, these mechanisms are inadequate, if not absent altogether. In such jurisdictions, it will be necessary to either legislatively, or judicially, expand the scope of statutory post-conviction relief. Alternatively, a state might admit the statutory post-conviction reliefs failings, and instead, provide a mechanism of review within the extraordinary writ context of state habeas corpus relief.

Second, this article focuses on the responsibility which now must be assumed by state governors. Historically, when the judicial system could not redress errors of law, or when the judicial system could not do justice, it was governors, through exercise of the executive's power of commutation, who filled that gap and did justice. Even if modifications are made to the state post-conviction system, these are unlikely to adequately assure that justice is done. Although the political climate may be perceived to create a disincentive to acceptance of this responsibility, this impression is misleading. Indeed, this responsibility must be accepted, as the public's and the governor's expectation that the courts have identified and corrected all injustices through supposedly extensive review, is simply no longer accurate.

In the end, this article asks for accountability, that some institution or individual assume the responsibility for assuring that, when deciding who should live and who should die, reliable, non-arbitrary, and fair decisions will be achieved. The United States Supreme Court has shown it is no longer willing to bear that responsibility alone. It has now shifted much of that responsibility back to the states. Society now stands at a point similar to where it stood some forty years ago when the doors to the federal courts were only partially open. Some differences exist; for instance, the constitutional violations that are evident now as a person approaches execution were not evident then. But even forty years ago, the states shouldered that responsibility with some care. When the state's judicial machinery failed in its responsibility, governors often assumed it. Today, when the process of death-sentencing is so much more subject to public evaluation, society demands that these cases of possible unreliable, arbitrary, or discriminatory death-sentencing be rectified.

These issues will soon be addressed in all states with capital sentencing statutes. A detailed, thorough evaluation on a national scale of all of these issues is unfortunately beyond the scope of this article, due to the time constraints imposed by publication. Rather, this article will attempt to modestly illustrate these issues by focusing on a single jurisdiction, Ohio. Hopefully, the illumination of the inadequacies of Ohio's direct appellate review and state-post-conviction relief processes, and presentation of proposals for the expansion of judicial review in these contexts, will be of assistance here as well as in other states. Similarly, illumination of the traditional role of the executive branch in filling in the gaps caused by inadequacies in the judicial system, through use of the commutation power, will hopefully encourage serious attention to the responsibility which should be exercised by governors in the years to come.