Streamlined to Death

When the issue was whether a shell of a woman with no higher brain function should be kept alive in apparent defiance of her own stated wishes, Congressional Republicans and the White House were ready to move heaven and earth to ensure that her case got more federal judicial attention than the law required.

When the issue is whether a state is about to execute a person wrongly convicted of a capital crime, it’s a whole different story.

Anyone who’s followed the history of the Innocence Project knows that our judicial system is less than perfect. Since 1989 the Project has used DNA evidence to free 159 wrongfully convicted prisoners, some from death row and others from life imprisonment. Some had actually confessed; others were victimized by mistaken eyewitness testimony, sloppy laboratory work, unscrupulous prosecutors, or inept defense attorneys. In every case a court had found them guilty beyond a reasonable doubt.

It’s worth noting that the Innocence Project deals only with cases involving DNA evidence; innocent prisoners in cases without testable DNA have no such recourse. If there’s a reason why we should expect the judicial system to function any better when DNA isn’t involved, I haven’t heard it. So we have every reason to believe that there are thousands of innocent people serving time—or awaiting death—in American prisons.

As far as I can tell, there are two basic takes on these facts, which are demonstrated in their purest form by examples from the neighboring states of Illinois and Missouri. The first is the position of Illinois governor George Ryan, who, despite his belief in the propriety of the death penalty, declared a moratorium on executions and then, before leaving office, commuted the sentences of everyone on Illinois’ death row. Ryan commented that he'd "sleep well knowing I made the right decision."

The other is exemplified by this exchange between a Missouri judge and a prosecutor trying to prevent a death-penalty case from being reopened (there's no word on the prosecutor's sleep prospects):

Judge: Are you suggesting [that] even if we find Mr. Amrine is actually innocent, he should be executed?

Prosecutor: That's correct, your honor.

Of course many people will find themselves between these extremes, but for those closer to Governor Ryan's end of the spectrum, the question will necessarily be how best to prevent the ultimate miscarriage of justice.

The habeas corpus petition is a powerful tool that allows prisoners, including the wrongly convicted, to challenge the constitutionality of their state-court convictions before a federal court. Absent a Schiavoesque special act of Congress, habeas corpus is the only recourse for prisoners who have been mistreated by the state courts and have exhausted the review process at the state level. And, as we now know, a significant number of these prisoners are in fact innocent.

So, unless you're as sanguine as that Missouri prosecutor about executing innocent people, the last thing you'd want to do would be to curtail habeas corpus review. Right?

Representative Dan Lungren (R-CA) and Senator Jon Kyl (R-AZ) beg to differ. They've introduced the "Streamlined Procedures Act of 2005" (H.R. 3035, S. 1088), which, according to the Washington Post, has "alarming momentum" in both houses. For those of us on Governor Ryan's side of the divide, "alarming" is exactly the right word. The bill would impose new time limits and filing requirements on habeas corpus petitions to the Federal judiciary and have the effect of making it much harder for a prisoner to use the federal courts to remedy a wrongful state court conviction.

I'm no lawyer, and I can't offer a detailed analysis of the legislation. But I was struck immediately by the first provision of the bill (out of about twenty amendments to existing federal law), which redefines when an application for a writ of habeas corpus may be granted. Current law (Title 28 of the U.S. Code, section 2254(b)) specifies these conditions:

(A) the applicant has exhausted the remedies available in the courts of the State; or
(B)(i) there is an absence of available State corrective process; or
(ii) circumstances exist that render such process ineffective to protect the rights of the applicant.

In the Kyl/Lungren bill, these circumstances are "streamlined" as follows:

(A) the applicant--
(i) has exhausted the remedies available in the courts of the State by fairly presenting and arguing the specific Federal basis for each claim in the State courts; and
(ii) has described in the application how the applicant has exhausted each claim in the State courts; or
(B) (i) each unexhausted claim for relief in the application would qualify for consideration on the grounds described in subsection (e)(2); and
(ii) the denial of such relief is contrary to, or would entail an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States.

And, just for good measure,

(4) Any unexhausted claim that does not qualify for consideration on the grounds described in this subsection shall be dismissed with prejudice.

The first thing to notice is that the Kyl/Lungren version strikingly narrows the conditions under which federal review is appropriate. Currently, this can occur any time the state appeals process is insufficient to protect the petitioner's rights. In Kyl/Lungren, these rights disappear in favor of strict procedural requirements.

My non-lawyerly reading of the 2254(b) rewrite is that it would require the petitioner's attorney to argue all relevant points of federal law during the state appeals process, and thus would require state courts to rule on the correct application of federal law. This shouldn't be a problem for the state courts, though, since only "clearly established Federal law, as determined by the Supreme Court of the United States" can be considered when granting a writ of habeas corpus.

But think about this for a minute. In the 1963 case Gideon v. Wainwright, the Supreme Court ruled that Clarence Earl Gideon had been denied his Sixth Amendment right to counsel (made binding on the states by the Fourteenth Amendment) when the State of Florida refused to appoint him a lawyer in a non-capital felony trial. In this decision the Court firmly established that access to basic constitutional rights could not be conditioned on the ability to afford them; the Constitution protects rich and poor alike.

But if "Streamlined Procedures" had been the law of the land in 1963, this case would never have been heard. In deciding Gideon v. Wainwright, the Supreme Court reversed the standing precedent of Betts v. Brady, which had held in a similar 1942 case that the Constitution did not require appointment of counsel. That is, at the time of Gideon, the action of the Florida state court denying Gideon's habeas petition was not "contrary to . . . clearly established Federal law, as determined by the Supreme Court of the United States." It was in fact consistent with Supreme Court precedent as expressed in Betts. Gideon would have had no case, and he and countless indigent defendants in the years since would have been denied the right to counsel. And, let me reiterate, this includes the innocent ones.

Maybe this is what Lungren, Kyl, and the four Senate co-sponsors of S. 1088 really want. If so, I'd love to see them come right out and say so. So far the arguments I've seen in favor of the bill (e.g., here) totally ignore the Constitutional rights of prisoners in favor of "closure" for victims and their families.

Victims of violent crime certainly deserve to be treated with dignity and sensitivity. But the Constitution doesn't guarantee a right to closure, and it does prohibit cruel and unusual punishment. According to one of the authors of a study on death sentence reversals, "we suspect that simply removing this [i.e., the federal] level of appeal will lead to the upholding of death verdicts with serious errors." The Washington Post is undoubtedly correct when it points out: "It is no exaggeration to say that if this bill becomes law, it will consign innocent people to long-term incarceration or death."

If being executed for a crime you didn't commit isn't cruel and unusual, I don't know what is.