Habeas Bill: Don't Do It
The Washington Post today calls the bill to streamline death penalty appeals, introduced in the Senate by Jon Kyl (R-Ariz.) and in the House by Daniel E. Lungren (R-Calif.), "an unmitigated disaster."
Habeas corpus is the centuries-old device by which inmates challenge the legality of their detentions. In modern times it has become the essential vehicle by which convicts on death row or serving lengthy prison terms attack their state-court convictions. Many innocent people owe their freedom to their ability to file habeas petitions.
Yet in many death cases, the most drastic versions of the bill would eliminate federal review entirely. Even where they didn't do that, they would create onerous procedural roadblocks and prevent federal courts from considering key issues. They would bar federal courts from reviewing most capital sentencing and create arbitrary timetables for federal appeals courts to handle these cases.
The Post points out [as I did here]that "chief justices of the nation's state court systems have voted overwhelmingly to urge Congress to slow down."
[they] recommend "delaying further action" pending additional study to evaluate whether change in current law is even necessary. If it is, the justices urge Congress "to consider appropriate targeted measures that will ameliorate the documented problems and avoid depriving the federal courts of their traditional jurisdiction without more supporting evidence."
This legislation is ill-advised and, in my opinion, gets it as*-backwards:
One of the principal reasons death penalty appeals take so long is that people languish on death row for years before a lawyer is appointed to represent them. If we raised the compensation levels and provided adeqate expense money for forensic testing and experts, more qualified lawyers would volunteer to defend death cases on appeal and in habeas proceedings and they wouldn't last so long.
Also, if we raised the standards for representation of capital defendants at the trial level, and required DNA testing where such evidence exists, and made the ABA standards for qualification mandatory, there would be far fewer claims of ineffective assistance of counsel at the trial level.
We should not do anything legislatively that might increase the risk that an innocent person will be put to death. It's not the American way.
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