The Coming Court Calendar

By Savage, David G. | State Legislatures, February 1998 | Go to article overview

The Coming Court Calendar


Savage, David G., State Legislatures


The death penalty, the First Amendment and who owns shipwrecks are among the questions the Supreme Court will soon consider.

States that impose the death penalty should be closely watching a California case to be heard by the Supreme Court this spring. At issue is whether the states can limit a Death Row inmate's appeals in federal court.

For state prosecutors, as well as for a victim's family, winning a conviction and a death sentence for a brutal murderer is not the end. It is instead often just the first stage of a legal process that is likely to go on for another 10 to 15 years. Since the 1960s, when the Supreme Court broadened the use of habeas corpus, this nation has had a dual system of review for criminal appeals, one state and one federal. A convicted killer who is sentenced to die can appeal all aspects of his case in the state courts, a process that often lasts the better part of a decade. Then, once the state supreme court has rejected his final appeal, he can start over again in the federal system.

Chief Justice William H. Rehnquist and many state prosecutors have chafed at this two-track process, calling it costly, duplicative and time consuming. Two years ago (April 1996), the Republican Congress and President Clinton agreed to change federal law and to put new limits on state criminal appeals in federal court. The changes received relatively little notice because they were tucked into the Antiterrorism Act of 1996.

Under the new law, a state inmate whose death sentence has been upheld by the state's highest court has only 180 days to file an appeal in federal court. He must include all the possible grounds for challenging his conviction and sentence. In the past, there were no deadlines, and an inmate and his lawyer could wait for years to file a federal appeal. Many did so only after a state prosecutor set a date for his execution. Prisoners were also permitted to challenge their convictions on a piecemeal basis, trying one appeal first, and if that failed, trying another.

The new law also puts deadlines on U.S. judges to decide the appeals. In the past, federal judges sometimes held cases four or five years before acting on an appeal. Now they must do so 180 days after the appeal is filed. Similar deadlines were imposed on the U.S. courts of appeals.

While the law included a bunch of carrots for the states, it also came with one stick. In order to take advantage of the new limits, the states are obliged to pay "reasonable litigation expenses of competent counsel" to prepare appeals after a murderer is given a death sentence. Everyone agreed it is better to thoroughly examine and investigate a prisoner's claims of unfairness at an early stage, rather than have the unanswered questions arise on the eve of an execution.

Of course, the phrases "reasonable expenses" and "competent counsel" are subject to different interpretations. To no one's surprise, anti-death penalty lawyers do not agree with state officials on what is required. Also to no one's surprise, a lawsuit on the issue arose in California.

Over the past two decades, California has epitomized the legal struggle over carrying out the death penalty. Since its voters restored capital punishment in 1977, jurors have sentenced more than 500 murderers to die. So far, however, only four convicts have been executed. On average, their appeals in state and federal court ran for 13 years. Governor Pete Wilson notes despairingly that Death Row inmates at San Quentin are more likely to die of natural causes than of a lethal injection.

The delays clearly are not due to the state's reluctance to carry out executions. They are a product of lengthy appeals in federal courts.

A day after President Clinton signed into law the changes in death penalty procedures, lawyers in San Francisco filed a class action lawsuit in federal court challenging the measure. They spoke on behalf of the 480 inmates on Death Row. …

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