High Court Orders Fast Review of Law: Act Restricts Habeas Corpus Appeals

Article excerpt

The Supreme Court yesterday ordered an extraordinarily expedited hearing on a new anti-terrorism law curbing the court's authority and restricting repeated habeas corpus appeals, including those from death row.

Using a procedure reserved for the most important constitutional matters - particularly those relating to the separation of powers - justices gave each side in a case involving a death-row inmate's appeal two weeks to put their positions in writing. Courtroom arguments are set for June 3.

A decision is expected before the court adjourns around June 28. Dissenting justices and legal scholars yesterday attacked the process as too swift to settle a 130-year controversy. Usual practice requires at least four months between accepting a case and hearing arguments.

The Anti-Terrorism and Effective Death Penalty Act of 1996 came under sharp attack in federal courts from coast to coast immediately after President Clinton signed it April 24. The Supreme Court voted 5-4 yesterday to add a case involving the new law to this term's calendar, in which all scheduled oral arguments already have been heard.

Although the dissenters all have opposed executions, the outcome does not seem preordained. The conservative lineup appeared more concerned with the court's constitutional powers than with speeding up executions.

The justices ordered the case argued on three questions far more specific than issues raised in the Georgia inmate's appeal:

* Does Congress unconstitutionally restrict Supreme Court jurisdiction in the new terrorism law?

* When does the law apply to habeas corpus petitions filed directly with the high court, as opposed to those which require permission from a three-judge federal appeals-court panel?

* Does applying the act to allow the execution of Ellis Wayne Felker in Georgia for a 1981 rape and murder amount to suspending habeas corpus?

Felker challenged the portion of the law that bars the Supreme Court from reviewing the action of three-judge appeals-court panels that must give state inmates permission to file a second federal appeal challenging the constitutionality of their convictions.

The high court denied Felker's prior appeal in February.

The court did not indicate the fate of other condemned prisoners scheduled for execution in coming months, but the action was certain to pose an obstacle in some cases.

Five of the eight prisoners scheduled for execution before the hearing have had earlier appeals denied by the Supreme Court. The section restricting repeat use of the habeas corpus procedure to delay execution is sure to be challenged by their attorneys in view of yesterday's action.

Habeas corpus also is used in other cases where the stakes are lower. There are 9,000 to 10,000 such cases in the federal courts at any one time, said Columbia University law professor James S. Liebman.

"They've given the parties two weeks and themselves a month to consider this very difficult question that has plagued constitutional scholars for decades and decades," said Mr. Liebman, who literally wrote the book on habeas corpus, "Federal Habeas Corpus and Procedure," co-written with Randy Hertz.

Asked if he found merit in not allowing repeat appeals, Mr. …