with whom The Chief Justice and Justice Rehnquist join, dissenting.
Respondent, a black man, was indicted by a grand jury having no black members for the stabbing murder of a 15-year-old girl. A petit jury found respondent guilty of that charge beyond a reasonable doubt, in a trial the fairness of which is unchallenged here.1 Twenty-three years later, we are asked to grant respondent’s petition for a writ of habeas *268corpus — and thereby require a new trial if that is still feasible — on the ground that blacks were purposefully excluded from the grand jury that indicted him. It is undisputed that race discrimination has long since disappeared from the grand jury selection process in Kings County, California. It is undisputed that a grand jury that perfectly represented Kings County’s population at the time of respondent’s indictment would have contained only one black member.2 Yet the Court holds that respondent’s petition must be granted, and that respondent must be freed unless the State is able to reconvict, more than two decades after the murder that led to his incarceration.
It is difficult to reconcile this result with a rational system of justice. The Court nevertheless finds its decision compelled by a century of precedent and by the interests of respondent and of society in ending race discrimination in the selection of grand juries. I dissent for two reasons. First, in my view, any error in the selection of the grand jury that indicted respondent is constitutionally harmless. Second, even assuming that the harmless-error rule does not apply, reversal of respondent’s conviction is an inappropriate remedy for the wrong that prompts this case.
h-i
The Court concludes that the harmless-error rule does not apply to claims of grand jury discrimination. Ante, at 261. This conclusion is said to follow from a line of cases going back over 100 years. Ante, at 260-261. In my view, it follows from a misapplication of the doctrine of stare decisis.
Adhering to precedent “is usually the wise policy, because in most matters it is more important that the applicable rule of law be settled than that it be settled right.” Burnet v. *269Coronado Oil & Gas Co., 285 U. S. 393, 406 (1932) (Brandéis, J., dissenting). Accordingly, “any departure from the doctrine of stare decisis demands special justification.” Arizona v. Rumsey, 467 U. S. 203, 212 (1984); Garcia v. San Antonio Metropolitan Transit Authority, 469 U. S. 528, 559 (1985) (Powell, J., dissenting). Nevertheless, when governing decisions are badly reasoned, or conflict with other, more recent authority, the Court “has never felt constrained to follow precedent.” Smith v. Allwright, 321 U. S. 649, 665 (1944). Instead, particularly where constitutional issues are involved, “[t]his Court has shown a readiness to correct its errors even though of long standing.” United States v. Barnett, 376 U. S. 681, 699 (1964). In this case, the Court misapplies stare decisis because it relies only on decisions concerning grand jury discrimination. There is other precedent, including important cases of more recent vintage than those cited by the Court, that should control this case. Those cases hold, or clearly imply, that a conviction should not be reversed for constitutional error where the error did not affect the outcome of the prosecution.
In Chapman v. California, 386 U. S. 18 (1967), the Court held that a trial judge’s improper comment on the defendant’s failure to testify — a clear violation of the Fifth and Fourteenth Amendments — was not a proper basis for reversal if harmless. Id., at 21-24. Since Chapman, “the Court has consistently made clear that it is the duty of a reviewing court to consider the trial record as a whole and to ignore errors that are harmless, including most constitutional violations.” United States v. Hasting, 461 U. S. 499, 509 (1983). This rule has been applied to a variety of constitutional violations. See Harrington v. California, 395 U. S. 250 (1969) (use of co-conspirator confession in violation of Confrontation Clause); Coleman v. Alabama, 399 U. S. 1 (1970) (denial of counsel at preliminary hearing); Milton v. Wainwright, 407 U. S. 371 (1972) (use of confession obtained in violation of *270right to counsel); Gerstein v. Pugh, 420 U. S. 103 (1975) (illegal arrest).
Other doctrines reflect the same principle. A defendant claiming ineffective assistance of counsel must show that counsel’s incompetence caused him actual prejudice. Strickland v. Washington, 466 U. S. 668, 687 (1984). This is so even though counsel “made errors so serious that [he] was not functioning as the ‘counsel’ guaranteed by the Sixth Amendment.” Ibid.3 Similarly, a defendant who is barred by a procedural default from asserting a constitutional claim on direct appeal cannot raise the claim on habeas corpus without showing that the error actually prejudiced him. United States v. Frady, 456 U. S. 152, 170 (1982); see also Wainwright v. Sykes, 433 U. S. 72 (1977).
In Rose v. Mitchell, 443 U. S. 545 (1979), the Court contended that the principle of these cases is inapplicable to grand jury discrimination claims, because grand jury discrimination “destroys the appearance of justice and thereby casts doubt on the integrity of the judicial process.”4 Id., at 555-556. But every constitutional error may be said to raise questions as to the “appearance of justice” and the “integrity *271of the judicial process.” Nevertheless, as the cases cited above show, the Court has required some showing of actual prejudice to the defendant as a prerequisite to reversal, even when the constitutional error directly affects the fairness of the defendant’s trial. Compare Strickland v. Washington, supra, at 687 (requiring prejudice in ineffective assistance of counsel claims), with Gideon v. Wainwright, 372 U. S. 335, 344-345 (1963) (emphasizing importance of right to counsel to ensure fair trial). Grand jury discrimination is a serious violation of our constitutional order, but so also are the deprivations of rights guaranteed by the Fourth, Fifth, Sixth, and Fourteenth Amendments to which we have applied harmless-error analysis or an analogous prejudice requirement. Moreover, grand jury discrimination occurs prior to trial, while the asserted constitutional violations in most of the above-cited cases occurred during trial. The Court does not adequately explain why grand jury discrimination affects the “integrity of the judicial process” to a greater extent than the deprivation of equally vital constitutional rights, nor why it is exempt from a prejudice requirement while other constitutional errors are not.
Thirty-one years ago, in a typically prescient opinion, Justice Jackson called for such an explanation. Cassell v. Texas, 339 U. S. 282, 299 (1950) (Jackson, J., dissenting). None has been forthcoming. Rose v. Mitchell, supra, at 575 (Stewart, J., concurring in judgment). Since then, as the cases cited above show, the Court has firmly established the principle that error that does not affect the outcome of a prosecution cannot justify reversing an otherwise valid conviction. That proposition — and the decisions of the last two decades that have reinforced it — is flatly inconsistent with the result reached today. The Court’s failure to reconcile this conflict itself violates the doctrine of stare decisis.
I would dissent from the Court’s decision for this reason alone. The reasoning of Chapman and its progeny accords with a rational system of justice — one that fully preserves *272constitutional rights but recognizes that not every violation undermines the fairness of a given conviction. In this case, the grand jury error did not affect the fairness of respondent’s trial or otherwise injure respondent in any cognizable way. Infra, at 274-277. I therefore would reverse the Court of Appeals.
II
Even assuming that now-established harmless-error principles are inapplicable, this case unjustifiably extends the “century of precedent” on which the Court relies. Those decisions do not require reversal of a decades-old conviction on the ground that it was preceded by an indictment issued by a discriminatorily selected grand jury. The purposes of the “automatic reversal” rule require otherwise.
A
No one questions that race discrimination in grand jury selection violates the Equal Protection Clause of the Fourteenth Amendment. E. g., Rose v. Mitchell, 443 U. S., at 551; id., at 577-578 (Stewart, J., concurring in judgment); id., at 590-591 (White, J., dissenting). The issue in this case is not whether the State erred, but what should be done about it. The question is whether reversal of respondent’s conviction either is compelled by the Constitution or is an appropriate, but not constitutionally required, remedy for racial discrimination in the selection of grand jurors. See Bush v. Lucas, 462 U. S. 367, 378 (1983); Davis v. Passman, 442 U. S. 228, 245 (1979); Bivens v. Six Unknown Federal Narcotics Agents, 403 U. S. 388, 403, 407 (1971) (Harlan, J., concurring in judgment).
The Constitution does not compel the rule of automatic reversal that the Court applies today. In Hobby v. United States, 468 U. S. 339 (1984), we acknowledged that discriminatory selection of grand jury foremen violated the Constitution, but we concluded that reversing the petitioner’s conviction was an inappropriate remedy for the violation since *273grand jury foremen play a minor part in federal prosecutions. Id., at 345-346; see also Oregon v. Elstad, 470 U. S. 298, 305-307 (1985) (suppression of evidence obtained in violation of Miranda v. Arizona, 384 U. S. 436 (1966), is not constitutionally compelled); United States v. Leon, 468 U. S. 897, 905-906 (1984) (suppression of evidence obtained in violation of the Fourth Amendment is not constitutionally compelled); Stone v. Powell, 428 U. S. 465, 489 (1976); see generally Monaghan, Foreword: Constitutional Common Law, 89 Harv. L. Rev. 1 (1975). The rationale of Hobby cannot be squared with the claim that discriminatory selection of the body that charged the defendant compels reversal of the defendant’s conviction. Rather, it is necessary to determine whether reversal of respondent’s conviction is an “appropriate remedy” for the exclusion of blacks from grand juries in Kings County, California, in 1962.5 Hobby, supra, at 342; see Rose v. Mitchell, supra, at 558-559 (weighing costs and benefits of awarding relief to petitioners claiming grand jury discrimination). Cf. Merrill, The Common Law Powers of Federal Courts, 52 U. Chi. L. Rev. 1, 53 (1985) (arguing that judicially created remedies are appropriate only when “necessary in order to preserve a specifically intended federal right”). That determination depends on (i) the utility of the remedy in either correcting any injustice to respondent or deterring unconstitutional conduct by state officials, and (ii) the remedy’s costs to society. United States v. Leon, supra, at 906-907; Stone v. Powell, supra, at 489.
B
The scope of the remedy depends in part on the nature and degree of the harm caused by the wrong. The Court perceives two kinds of harm flowing from grand jury discrimination: harm to respondent’s interest in not being charged *274and convicted because of his race, and harm to society’s interest in deterring racial discrimination. I consider in turn these asserted interests and the degree to which they are served in this case by the Court’s automatic reversal rule.
(1)
The Court does not contend that the discriminatory selection of the grand jury that indicted respondent calls into question the correctness of the decision to indict. Such a contention could not withstand analysis. Following his indictment for murder, respondent was convicted of that charge in a trial and by a jury whose fairness is not now challenged. The conviction, affirmed on direct appeal in 1965,6 establishes that the grand jury’s decision to indict was indisputably correct. Rose v. Mitchell, supra, at 575-576 (Stewart, J., concurring in judgment); Cassell v. Texas, 339 U. S., at 301-302 (Jackson, J., dissenting). Justice Jackson expressed the point best:
“It hardly lies in the mouth of a defendant whom a fairly chosen trial jury has found guilty beyond reasonable doubt, to say that his indictment is attributable to prejudice. In this case a trial judge heard the prosecution’s evidence, ruled it sufficient to warrant a conviction, appellate courts have held the same, and no further question about it is before us. Moreover, a jury admittedly chosen without racial discrimination has heard the prosecution’s and defendant’s evidence and has held that guilt beyond a reasonable doubt has been proved. That finding, too, has been affirmed on appeal and is not here. Under such circumstances, it is frivolous to contend that any grand jury, however constituted, could have done its *275duty in any way other than to indict.” Cassell v. Texas, supra, at 302 (dissenting).
The Court nevertheless decides that discrimination in the selection of the grand jury potentially harmed respondent, because the grand jury is vested with broad discretion in deciding whether to indict and in framing the charges, and because it is impossible to know whether this discretion would have been exercised differently by a properly selected grand jury. Ante, at 263. The point appears to be that an all-white grand jury from which blacks are systematically excluded might be influenced by race in determining whether to indict and for what charge. Since the State may not imprison respondent for a crime if one of its elements is his race, the argument goes, his conviction must be set aside.
This reasoning ignores established principles of equal protection jurisprudence. We have consistently declined to find a violation of the Equal Protection Clause absent a finding of intentional discrimination. Arlington Heights v. Metropolitan Housing Development Corp., 429 U. S. 252, 265 (1977); Washington v. Davis, 426 U. S. 229, 239 (1976). There has been no showing in this case — indeed, respondent does not even allege — that the Kings County grand jury indicted respondent because of his race, or that the grand jury declined to indict white suspects in the face of similarly strong evidence.7 Nor is it sensible to assume that impermissible dis*276crimination might have occurred simply because the grand jury had no black members. This Court has never suggested that the racial composition of a grand jury gives rise to the inference that indictments are racially motivated, any more than it has suggested that a suspect arrested by a policeman of a different race may challenge his subsequent conviction on that basis.8 But the Court now holds that relief is justified in part because of the bare potential, unsupported by any evidence, that an all-white grand jury charged respondent because of his race.
This justification does not square with the Court’s previous decisions in this area; at the same time, it fails to explain the outcome of this case. In Castaneda v. Partida, 430 U. S. 482 (1977), for example, the Court ordered a new trial for a Hispanic petitioner who was indicted by a grand jury half of whose members were Hispanic. Whatever value such a result might have, it cannot be justified on the ground that the grand jury indicted the petitioner because of his race. In this case, due to the small number of blacks in Kings County, a random selection system could well have resulted in a grand jury identical to the one that indicted respondent. A perfectly representative grand jury — one whose composition reflected the county’s racial mix — would have contained only one black member. Neither outcome would have justified an inference that respondent had been charged because of his race. See Akins v. Texas, 325 U. S. 398, 403 (1945).
Once the inference of racial bias in the decision to indict is placed to one side, as it must be under our precedents, it is *277impossible to conclude that the discriminatory selection of Kings County’s grand jurors caused respondent to suffer any cognizable injury. There may be a theoretical possibility that a different grand jury might have decided not to indict or to indict for a less serious charge. The fact remains, however, that the grand jury’s decision to indict was correct as a matter of law, given respondent’s subsequent, unchallenged conviction. A defendant has no right to a grand jury that errs in his favor. At most, he has an interest in not being bound over for trial in the absence of any evidence of his guilt, see Costello v. United States, 350 U. S. 359, 364 (1956) (Burton, J., concurring),9 or based on impermissible factors such as his race, see Oyler v. Boles, 368 U. S. 448, 456 (1962). There is no allegation that those rights were violated in this case. The Court’s decision cannot, therefore, be justified as a means of redressing any wrong to respondent.
(2)
As respondent suffered no prejudice from the grand jury discrimination that prompted his claim, the Court’s remedy must stand or fall on its utility as a deterrent to government officials who seek to exclude particular groups from grand juries, weighed against the cost that the remedy imposes on society. See United States v. Leon, 468 U. S., at 906-907. The Court properly emphasizes that grand jury discrimination is “a grave constitutional trespass,” ante, at 262, but it leaps from that observation to the conclusion that no matter when the claim is raised the appropriate response is to reverse the conviction of one indicted by a discriminatorily se*278lected body. That conclusion is not, as the Court erroneously suggests, compelled by precedent; equally important, it seriously disserves the public interest.
The cases on which the Court relies involved relatively brief lapses of time between the defendant’s trial and the granting of relief. This fact is unsurprising, since the Court only recently determined that claims of grand jury discrimination may be raised in federal habeas corpus proceedings. See Rose v. Mitchell, 443 U. S. 545 (1979).10 Prior to 1970, the Court’s grand jury discrimination cases arose on direct appeal from conviction. In all of those cases, the time between the defendant’s indictment and this Court’s decision was six years or less.11 Before today, the Court has twice *279granted relief to habeas corpus petitioners alleging grand jury discrimination. Both cases involved delays comparable to the delay reflected in the cases that arose on direct appeal. See Castaneda v. Partida, 430 U. S. 482 (1977) (decision announced five years after indictment); Peters v. Kiff, 407 U. S. 493 (1972) (decision announced six years after indictment).
This case raises the open question whether relief should be denied where the discrimination claim is pressed many years after conviction, and where the State can show that the delay prejudiced its ability to retry the defendant.12 Respondent first raised his grand jury discrimination claim before a federal court 16 years after his conviction.13 It is now almost a quarter-century since respondent was tried for murder and since the discrimination occurred. The Court finds this time lapse irrelevant. In my view, it is critically important, because it both increases the societal cost of the Court’s chosen *280remedy and lessens any deterrent force the remedy may otherwise have.
In Rose v. Mitchell, supra, the Court reasoned that the rule of automatic reversal imposes limited costs on society, since the State is able to retry successful petitioners, and since “the State remains free to use all the proof it introduced to obtain the conviction in the first trial.” Id., at 558. This is not the case when relief is granted many years after the original conviction. In those circumstances, the State may find itself severely handicapped in its ability to carry its heavy burden of proving guilt beyond a reasonable doubt. Where the original verdict turned on the jury’s credibility judgments, long delays effectively eliminate the State’s ability to reconstruct its case. Even where credibility is not central, the passage of time may make the right to retry the defendant “a matter of theory only.” Friendly, Is Innocence Irrelevant? Collateral Attack on Criminal Judgments, 38 U. Chi. L. Rev. 142, 147 (1970). Witnesses die or move away; physical evidence is lost; memories fade. For these reasons, the Court has noted that “ ‘[t]he greater the lapse of time, the more unlikely it becomes that the state could reprosecute if retrials are held to be necessary.’” Peyton v. Rowe, 391 U. S. 54, 62 (1968) (citation omitted).14
Long delays also dilute the effectiveness of the reversal rule as a deterrent. This case is illustrative. The architect of the discriminatory selection system that led to respondent’s claim, Judge Wingrove, died 19 years ago. Respond*281ent does not allege that the discriminatory practices survived Judge Wingrove, nor is there any evidence in the record to support such an allegation. It is hard to believe that Judge Wingrove might have behaved differently had he known that a convicted defendant might be freed 19 years after his death. Yet that is exactly the proposition that must justify the remedy imposed in this case: that people in positions similar to Judge Wingrove’s will change their behavior out of the fear of successful habeas petitions long after they have left office or otherwise passed from the scene. The proposition, to say the least, is highly questionable.
These concerns require that a different balance be struck in a case such as this one than in cases in which the grand jury discrimination claim is adjudicated only a short time after the petitioner’s conviction. At the very least, the Court should focus directly on the aspect of delay that increases the costliness of its remedy by allowing the State to show that it would be substantially prejudiced in its ability to retry respondent.15 If this showing were made, respondent’s *282petition for relief should be denied. Such an approach would also identify those cases in which granting habeas relief could be expected to have the least deterrent value: the State will likely suffer the greatest prejudice in cases of long delay, and those are the cases in which the automatic reversal rule is least likely to alter the behavior of discriminatory officials. This approach would leave the rule that the Court defends intact in precisely those cases where it does the most good and the least harm: cases in which the responsible officials are likely to be accountable for forcing the State to again prove its case, and in which retrial and reconviction are plausible possibilities.
Ill
Twenty-three years ago, respondent was fairly convicted of the most serious of crimes. Respondent’s grand jury discrimination claim casts no doubt on the adequacy of the procedures used to convict him or on the sufficiency of the evidence of his guilt. For that reason alone, the Court should reverse the Court of Appeals’ decision.16 Even assuming the *283harmlessness of the error is irrelevant, however, reversal is still required. The Court inappropriately applies a deterrence rule in a context where it is unlikely to deter, and where its costs to society are likely to be especially high. These considerations should at least lead the Court to remand for a determination of whether the long lapse of time since respondent’s conviction would prejudice the State’s ability to retry respondent.
The Court follows neither of these paths, but instead affirms a decision that will likely mean that respondent must be freed for no good purpose. This result is not compelled by precedent. But if it were, its consequences would justify reconsidering those decisions thought to require it. I therefore dissent.
Respondent was thrice sentenced to death for this murder. See People v. Hillery, 10 Cal. 3d 897, 519 P. 2d 572 (1974); ante, at 256, n. 2. That sentence was ultimately reduced to life imprisonment because the California Supreme Court found that imposition of the death penalty was in all eases inconsistent with the California Constitution. Ibid.
According to 1960 census figures, 4.7% of Kings County’s population over age 21 was black. Hillery v. Pulley, 563 F. Supp. 1228, 1232 (ED Cal. 1983). Respondent’s grand jury consisted of 19 individuals, all of whom were white. Id., at 1231.
As the Court stated in Strickland, “[w]hen a defendant challenges a conviction, the question is whether there is a reasonable probability that, absent the errors, the factfinder would have had a reasonable doubt respecting guilt.” 466 U. S., at 695.
Although all parts of Justice Blackmun’s opinion in Rose v. Mitchell were joined by four other Justices, its precedential weight is subject to some question. In particular, Part II of the opinion — the part that discusses the legal principles applicable to grand jury discrimination claims generally — was not joined by five Justices who also joined in the judgment. Cf. Gregg v. Georgia, 428 U. S. 153, 169, n. 15 (1976) (Court’s holding is “that position taken by those Members who concurred in the judgments on the narrowest grounds”). Moreover, the opinion’s discussion of general principles was irrelevant to the result, which turned on the insufficiency of the evidence of discrimination. In my view, therefore, Rose is little more than an advisory opinion. See Flast v. Cohen, 392 U. S. 83, 94-95 (1968); Frankfurter, Note on Advisory Opinions, 37 Harv. L. Rev. 1002, 1005-1007 (1924).
Respondent does not allege that discriminatory selection of grand jurors continued after 1962. Nor is there anything in the record to support such an allegation.
The California Supreme Court affirmed respondent’s conviction in 1963; on rehearing in 1965, the court reversed respondent’s death sentence but again affirmed his conviction. Ante, at 256, n. 2. Respondent is presently serving a sentence of life imprisonment.
Most criminal cases in Kings County were initiated by information rather than indictment. In the decade ending in 1962, Kings County grand juries indicted a total of only four persons, only one of whom was black. People v. Hillery, 62 Cal. 2d 692, 710, 401 P. 2d 382, 393 (1965), cert. denied, 386 U. S. 938 (1967). In light of these facts, any claim that discriminatory selection of grand jurors was a mechanism for applying different standards to black offenders than to their white counterparts seems altogether fanciful.
Nor is there any direct evidence that the grand jury discriminated against respondent because of his race. The only discrimination in this ease was directed not at respondent but at the black residents of Kings County, who were barred from serving on grand juries because of their *276race. There is nothing in the record to support a finding that the grand jurors themselves discriminated against anyone on the basis of race, or that they otherwise failed to discharge their duties properly.
Instead, as the Court apparently acknowledges, a validly convicted criminal defendant must show that he was “deliberately charged ... on account of his race” in order to obtain reversal of the conviction. Ante, at 264 (citing United States v. Batchelder, 442 U. S. 114, 125, and n. 9 (1979)). Respondent has not even alleged, much less shown, any discrimination directed at him. See n. 7, supra.
1 do not intend to suggest that respondent could have obtained judicial review of the sufficiency of the evidence on which his indictment was based. See United States v. Calandra, 414 U. S. 338, 345 (1974) (“[A]n indictment valid on its face is not subject to challenge on the ground that the grand jury acted on the basis of inadequate or incompetent evidence”). I suggest only that, assuming such an attack were permitted, respondent could show no violation of any personal right in this case.
In my separate opinion in Rose v. Mitchell, I took the position that, where a habeas petitioner is given a full opportunity to litigate his grand jury discrimination claim in state court, he should not be permitted to litigate the claim again on federal habeas corpus. 443 U. S., at 579 (Powell, J., concurring in judgment). I remain convinced that my conclusion was correct. Nor do I believe that in this case stare decisis weighs persuasively against reexamining the question whether a defendant should be permitted to relitigate a claim that has no bearing on either his guilt or on the fairness of the trial that convicted him. Rose v. Mitchell, decided in 1979, is the only case in which this Court has examined the issue, and Rose’s authority is questionable. See n. 4, supra.
Justice O’Connor has some doubt as to whether respondent had a full and fair opportunity to litigate his grand jury discrimination claim in a state court. Ante, at 267 (O’ConnoR, J., concurring in judgment). Respondent concedes that he did in fact relitigate that claim in state habeas corpus proceedings, Brief for Respondent 3, and appealed the denial of relief to the California Supreme Court. Ibid. In my view, this afforded respondent an entirely adequate opportunity to litigate in state courts both the underlying discrimination claim and the subsidiary claim that Judge Wingrove was a biased adjudicator.
It is unnecessary actually to decide the issue in this case, for I conclude that the judgment should be reversed on two other grounds: the harmlessness of the error, and the inappropriateness of the Court’s remedy in cases in which the discrimination claim is raised so long after the claimant’s conviction that retrial is difficult if not impossible.
The longest time lapse occurred in Strauder v. West Virginia, 100 U. S. 303 (1880). In Strauder, the defendant was indicted in October 1874; this Court’s decision was rendered in March 1880.
The Court has decided only two cases in which the State might have argued that a long delay in raising a grand jury discrimination claim prejudiced the State’s ability to retry the defendant. In both instances, the Court denied relief on other grounds. Francis v. Henderson, 425 U. S. 536 (1976) (petitioner raised grand jury discrimination claim seven years after conviction; Court denied relief on exhaustion grounds); Tollett v. Henderson, 411 U. S. 258 (1973) (petitioner raised grand jury claim 21 years after conviction; Court held that claim was foreclosed because petitioner had pleaded guilty pursuant to competent legal advice).
The reason for this delay is irrelevant, unless bad faith on the State’s part can be shown. Because respondent suffered no injury from Kings County’s discriminatory selection of grand juries, he cannot fairly complain if he is required to raise his claim promptly in order to secure a windfall.
Moreover, respondent does not appear to have been blameless for the long delay. The California Supreme Court finally rejected respondent’s grand jury discrimination claim in 1965. Respondent next raised the claim in 1974, when he sought postconviction relief in state court. During the intervening nine years, respondent raised repeated challenges — ultimately successfully — to his death sentence. There is no apparent reason why respondent could not simultaneously have sought postconviction relief on the grand jury discrimination claim, which if successful would require a new trial on guilt.
Under the Court’s approach, one in respondent’s position may be wise to wait to raise his discrimination claim until the State could no longer reconvict him due to the death or disappearance of witnesses or the loss of physical evidence. In effect, this strategy could permit a prisoner to commute a legally imposed sentence of life or long duration. This is a risk society should tolerate where the claim goes to the petitioner’s guilt or innocence, or even where the claim seeks otherwise to redress a wrong done to the petitioner. But there is no reason to tolerate this risk where, as here, the claimant was fairly convicted and has suffered no prejudice from the asserted constitutional error.
The Court suggests that Rule 9(a) of the Habeas Corpus Rules, together with congressional inaction, “counsels against” considering prejudice to the State’s ability to retry respondent in this case. Ante, at 265. This suggestion is erroneous. Rule 9 permits the State to defend against both repetitious habeas petitions, see Woodard v. Hutchins, 464 U. S. 377, 379 (1984) (Powell, J., joined by BURGER, C. J., and Blackmun, Rehnquist, and O’Connor, JJ., concurring), and petitions to which the State cannot adequately respond due to the petitioner’s delay in filing, e. g., Mayola v. Alabama, 623 F. 2d 992, 999-1000 (CA5 1980), cert. denied, 451 U. S. 913 (1981). The Rule does not by its terms foreclose other consideration of the lapse of time between the petitioner’s conviction and the filing of the habeas petition. Honeycutt v. Ward, 612 F. 2d 36, 43 (CA2 1979) (Friendly, J., concurring in judgment), cert, denied, 446 U. S. 985 (1980). More important, it is a rule of habeas corpus procedure applicable to ha-beas petitions generally, and does not purport to be a rule of substantive law that defines particular substantive claims for relief. Congress’ decision not to amend it therefore says nothing about Congress’ intent with regard to the remedy applied here. In sum, the question whether the relief respondent seeks is “appropriate” in this case, Hobby v. United States, 468 *282U. S. 339, 342 (1984), is governed neither by Rule 9 nor by Congress’ decisions not to amend that Rule. See Stone v. Powell, 428 U. S. 465, 474-482 (1976) (discussing relationship between habeas corpus statute and the rule that evidence seized in violation of the Fourth Amendment is inadmissible). As the Court stated in Fay v. Noia, 372 U. S. 391, 438 (1963):
“[W]e recognize a limited discretion in the federal judge to deny [habeas corpus] relief to an applicant under certain circumstances. Discretion is implicit in the statutory command that the judge, after granting the writ and holding a hearing of appropriate scope, ‘dispose of the matter as law and justice require,’ 28 U. S. C. § 2243; and discretion was the flexible concept employed by the federal courts in developing the exhaustion rule. Furthermore, habeas corpus has traditionally been regarded as governed by equitable principles.”
See also Stone v. Powell, supra, at 478, n. 11. Those “equitable principles” cannot, in my view, require that the Court apply a remedy that is not constitutionally compelled beyond the bounds of justice and good sense.
Confidence in our system of justice is eroded when one found guilty of murder, in a trial conceded to be fair, is set free. It is important to remember that the criminal law’s aim is twofold: “that guilt shall not escape *283or innocence suffer.” Berger v. United States, 295 U. S. 78, 88 (1935); see also United States v. Agurs, 427 U. S. 97, 112 (1976). The Court’s decision in this ease plainly undermines the State’s interest in punishing the guilty, without either protecting the innocent or ensuring the fundamental fairness of the procedures pursuant to which one such as respondent is tried and convicted.