Crimes against Habeas Corpus; Congress's Drive-By Killing

Article excerpt

With its myriad new death-penalty offenses, "three-strikes" provisions, mandatory minimums and moneys for prisons and police, Congress left only one thing out of its much-vaunted new crime package: any protection for Americans' most basic constitutional rights. In their poll-driven stampede to look tough on crime and improve the safety of the streets, members of Congress have once again compromised the safety of our individual liberties by voting to strip from both House and Senate versions of the crime bill all provisions aimed at safeguarding the right of habeas corpus.

In recent years habeas corpus has been threatened by a battery of Supreme Court decisions that have systematically narrowed prisoners' access to the federal courts. The provisions in the crime bill would have corrected the most egregious of these rulings, thereby restoring the historic balance between states' and individuals' rights in reviewing criminal convictions. Many constitutional scholars and lawyers and some Democratic legislators believe it is the duty of Congress--which first incorporated habeas provisions into Article One of the Constitution in 1789 and has been responsible for its oversight ever since--to make sure that the current Supreme Court does not jeopardize those essential rights habeas corpus was designed to protect.

Although most habeas petitions are filed by ordinary prisoners, the vast majority of these never make it to federal trial. It is the relatively few petitions filed by death-row inmates that are far more complex, expensive and time-consuming to litigate. Because so many capital defendants are assigned incompetent lawyers and are convicted in seriously flawed trials, an astounding 40 percent of habeas corpus petitions have resulted in reversals of convictions or new trials, according to a recent study by the American Bar Association. Figures like this one, coupled with tales of horrific crimes perpetrated by repeat offenders, have led many outraged and fearful Americans to believe, erroneously, that convicted murderers are regularly being freed on technicalities.

Eager to streamline the appeals process and to shorten the average eight-year time lag between conviction and execution, in the past five years alone the Supreme Court has issued more than a dozen rulings that have severely limited the number and scope of claims inmates may bring to federal courts. One line of decisions now precludes death-row inmates who have completed their first round of appeals from benefiting from any new Supreme Court ruling. This not only encourages delays by effectively penalizing inmates who diligently pursue their appeals; it also results in a fundamental unfairness in the application of the death penalty. For example, the same 1993 Supreme Court ruling that would render one man's 1994 death sentence unconstitutional would spell no relief for the inmate with identical claims whose conviction became final in 1992. The former might be granted a new trial; the latter, an execution date.

Another landmark opinion, Brecht v. Abrahamson, written last year by Chief Justice William Rehnquist, shifted the burden of proof in federal habeas proceedings from the prosecutor to the prisoner, who must now demonstrate that he could never have been found guilty had there not been a constitutional violation at his trial--an almost impossible standard to meet. With this ruling the Court effectively lent its seal of approval to coerced confessions, the failure to inform prisoners of their right to counsel and the suppression of exculpatory evidence by prosecutors or police, so long as additional incriminating evidence exists. In Herrera v. Collins, perhaps the most shocking decision issued last year, the Chief Justice held that a condemned person whose appeal is based solely upon strong new evidence of his innocence is not entitled to a federal court hearing. The ominous formulation that one might be innocent but nevertheless may be executed because one's trial has been deemed constitutionally correct is the latest Orwellian twist in the Court's recent habeas jurisprudence. …