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Proposed legislation is currently pending in Congress that would eviscerate federal habeas corpus review of state convictions and effectively prevent federal courts from correcting wrongful convictions. The Streamlined Procedures Act of 2005 (“SPA”) (S. 1088 and H.R. 3035) would strip the federal courts of what limited jurisdiction they now have over constitutional habeas claims of state prisoners. As a practical matter, it would repeal the Great Writ for most state prisoners. It is an appallingly bad piece of legislation that must not become law.
Supporters of this legislation argue that it is needed to speed up executions. What this bill would do is speed up the execution of men and women who did not have the resources or competent counsel to prove that they were wrongfully convicted or sentenced, or even that they are innocent. In addition, it would remove federal habeas as a mechanism for correcting wrongful convictions in all state cases — not just capital cases.
As Barry Scheck stated in his testimony before the Senate Judiciary Committee during hearings on this bill in July:
[T]he wrongly convicted ordinarily cannot prove their innocence until they have competent counsel, appropriate experts, access to suppressed exculpatory evidence, and perhaps most important of all, a full and fair hearing on the merits of their procedural due process claims. . . . That is exactly why so many innocence cases do not start out presenting innocence claims at all, but rather procedural due process violations, and proof of innocence only emerges once the rubble of other legal errors has been swept aside. So any habeas bill that tries to restrict claims to just those that start off with fully developed showings of innocence will — by making sure that innocence showings don’t emerge from the rubble — bury them.
That is precisely what this bill would do. The bill’s “exception” for actual innocence cases requires clear and convincing evidence of innocence and facts that could not have been discovered previously through the exercise of due diligence. That is a hurdle which — for all practical purposes — will be impossible for state petitioners to overcome.
By stripping the federal courts of such jurisdiction, this bill ignores the recurrent problems, such as incompetent or nonexistent counsel, that often result in state convictions and sentences that deny state defendants their basic constitutional rights. Bryan Stevenson, the Executive Director of the Equal Justice Initiative of Alabama, explained in his testimony in hearings on this bill:
Deficiencies in state systems result in wrongful convictions and unreliable verdicts and sentences that must be corrected and addressed in postconviction proceedings. However, state postconviction in many states is simply non-responsive to these problems and even less reliable than the state trial process. . . .
Despite the fact that Alabama now has the fastest-growing death row population in the United States, it has no postconviction public defender office. Alabama appoints no lawyers to represent death-sentenced inmates at the conclusion of an unsuccessful direct appeal. It furnishes no paralegal or other aid at the prisons to enable death-sentenced inmates to collect the factual information and draft the pleadings necessary to obtain judicial consideration of constitutional claims based on facts outside the trial record. . . . Alabama’s failure to provide any legal assistance to death-row inmates forces those inmates who cannot find volunteer lawyers to file state postconviction petitions pro se.
As any criminal defense lawyer knows, the road to federal habeas relief is already virtually impassible for most state prisoners. Federal postconviction law is a complicated morass of waiver and procedural bars that is difficult for many attorneys to master. Given that many state prisoners must proceed pro se because they do not have attorneys to assist them with their postconviction petitions, it is not surprising that the technical requirements of habeas practice already often preclude a meaningful review of many state claims.
In 1996, Congress enacted the Antiterrorism and Effective Death Penalty Act (AEDPA) to address many of the same concerns being raised by sponsors of this bill. The AEDPA severely cut back on the availability of federal habeas protection for state prisoners by imposing strict, detailed procedures for screening such federal petitions and by adding a one-year statute of limitations. Over the past nine years, the courts have struggled to define the meaning and parameters of the AEDPA. Now, as those issues are finally being resolved, Congress proposes to enact the SPA which will overrule a long line of Supreme Court cases and will result in even more litigation.1
Opposition to this bill is mounting. In a joint resolution passed overwhelmingly on August 3, 2005, the Conference of Chief Justices and the Conference of State Court Administrators urged Congress not to pass this bill but rather to undertake “additional study and analysis . . . to evaluate the impact of AEDPA to date and the causes of unwarranted delay, if any, including the availability and allocation of resources and to consider appropriate targeted measures that will ameliorate the documented problems and avoid depriving the federal courts of their traditional jurisdiction without some supporting evidence.” Given the SPA’s almost total abdication to state court decision-making, the fact that the chief justices of the state courts oppose this bill should give Congress pause. In addition to the chief justices, former judges and prosecutors have also written to Congress to oppose this bill. Even Bob Barr, a former member of Congress who helped write the AEDPA, has voiced his strong concerns about the bill and urged further study before any action is taken. He stated:
As a former Member of Congress, I also know that unfortunately there are times when political pressures lead to imprudent decisions that can be destructive to basic constitutional liberties. S.1088, which would dramatically restrict the federal courts’ ability to consider habeas corpus petitions from state prisoners raising egregious constitutional violations or even evidence of innocence, is an example of legislation that is being pressed without sufficient deliberation, and without any real evidence that it is truly needed. . . . In addition, we have seen too many exonerations over the past several years to not be concerned about any laws that would increase, rather than decrease, the risk of error. S.1088 would greatly increase the risk of not identifying and even executing innocent people.
As these opponents to the bill have made clear, it is critical that this legislation be defeated. To accomplish that, Members of Congress must be informed about the horrific impact this bill will have if enacted. It is far too easy to support “speeding up” executions to placate a constituency. But it takes courage and integrity to stand up in opposition to a bill such as this.
In view of that, NACDL and its members have made substantial efforts to educate and embolden key legislators. Compelling examples taken from many of your files, lobbying efforts by exonerated persons and their families, favorable editorials, and opposition from right-leaning and establishment allies have helped slow the process and bring about modest improvements to the Senate version. In the critical weeks ahead, please watch for NACDL email alerts providing important legislative updates on the SPA and opportunities to help save the Great Writ.
Note
1. See Statement and Section-by-Section Analysis of the SPA prepared by Professor Eric M. Freedman on behalf of the ABA before the Committee on the Judiciary of the United States Senate dated July 13, 2005, for a detailed description of the SPA provisions.
The proposed legislation and related materials are also posted on the NACDL Web site at www.nacdl.org/savethewrit.