CONGRESS HAS a novel response to the rash of prisoners over the past few years
who have been exonerated of capital crimes after being tried and convicted: Keep
similar cases out of court. Both chambers of the national legislature are quietly
moving a particularly ugly piece of legislation designed to gut the legal means
by which prisoners prove their innocence.
Habeas corpus is the age-old legal process by which federal courts review the
legality of detentions. In the modern era, it has been the pivotal vehicle through
which those on death row or serving long sentences in prison can challenge their
state-court convictions. Congress in 1996 rolled back habeas review considerably;
federal courts have similarly shown greater deference -- often too much deference
-- to flawed state proceedings. But the so-called Streamlined Procedures Act
of 2005 takes the evisceration of habeas review, particularly in capital cases,
to a whole new level. It should not become law.
For a great many capital cases, the bill would eliminate federal review entirely.
Federal courts would be unable to review almost all capital convictions from
states certified by the Justice Department as providing competent counsel to
convicts to challenge their convictions under state procedures. Although the
bill, versions of which differ slightly between the chambers, provides a purported
exception for cases in which new evidence completely undermines a conviction,
this is drawn so narrowly that it is likely to be useless -- even in identifying
cases of actual innocence.
It gets worse. The bill, pushed by Rep. Daniel E. Lungren (R-Calif.) in the
House and Jon Kyl (R-Ariz.) in the Senate, would impose onerous new procedural
hurdles on inmates seeking federal review -- those, that is, whom it doesn't
bar from court altogether. It would bar the courts from considering key issues
raised by those cases and insulate most capital sentencing from federal scrutiny.
It also would dictate arbitrary timetables for federal appeals courts to resolve
habeas cases. This would be a dramatic change in federal law -- and entirely
for the worse.
The legislation would be simply laughable, except that it has alarming momentum.
A House subcommittee held a hearing recently, and the Senate Judiciary Committee
is scheduled to hold one and then mark up the bill this week. Both Judiciary
Committee chairmen surely know better. House Judiciary Chairman F. James Sensenbrenner
Jr. (R-Wis.), after all, has fought for better funding and training for capital
defense lawyers. And Senate Judiciary Chairman Arlen Specter (R-Pa.) has long
opposed efforts to strip federal courts of jurisdiction over critical subjects.
Neither has yet taken a public position on the bill. Each needs to take a careful
look. It is no exaggeration to say that if this bill becomes law, it will consign
innocent people to long-term incarceration or death.