By Susan Blaustein

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.

Still another series of cases, originating in a 1977 Rehnquist opinion, have deprived inmates of federal court review when their lawyers have made mistakes. In 1991, for example, Justice Sandra Day O'Connor held that Virginia death-row inmate Roger Coleman would not be allowed to present new evidence of his innocence because his attorney had been a day late in filing Coleman's habeas petition. Coleman was executed. Apparently, in the High Court's view, punctuality takes precedence over possible innocence.

"The public thinks the defendants get off on technicalities," says veteran capital defender David Bruck. "But the truth is, defendants are being executed on technicalities, due to the thicket of procedural obstacles in habeas rulings by the Supreme Court."

The habeas provisions proffered by the House Judiciary Committee would have eliminated some of those new procedural obstacles and enabled inmates to have their day in federal court without being able to abuse that privilege by repeatedly filing last-minute, specious appeals. Most important, given what both sides acknowledge is the often deplorable quality of defense counsel in capital cases and the extraordinary complexity of habeas litigation, the provisions would have created a mechanism for assigning experienced attorneys both at the trial level and for post-conviction appeals.

But the 103rd Congress, caught up in heated debate over the horrors of violence and the virtues of capital punishment, was keener on eliminating inmates' weightlifting equipment and federal college education funds than on bolstering prisoners' rights -- particularly with state prosecutors jamming members' fax machines with hyperbolic warnings that "to vote for the euphemistically entitled habeas `reform'... is to vote to end the death penalty."

Lest they be accused of "coddling criminals," House Republicans in particular strove to outdo one another's rhetorical brandishes in denouncing the Democrat-led Judiciary Committee's measures.

"How can anyone explain to the American people," queried Representative Charles Canady, "that we should grant convicted murderers on death row more opportunities to delay the execution of their sentences, more opportunities to thwart justice -- and more opportunities to torment the families of their victims? Let me tell you, the people will not buy it."

Judiciary Committee leaders countered that their habeas provisions did precisely what the critics wanted. "This is real streamlining," insisted Representative Don Edwards, chairman of the Subcommittee on Civil and Constitutional Rights, which drafted the measures. "It takes care of these endless delays; it provides for counsel: It is a real reform."

But Representative Henry Hyde, the ranking minority subcommittee member, masterminded a successful campaign to have the entire habeas package, including the counsel provisions, deleted from the larger House crime bill. "This year it is the considered judgment of law-enforcement professionals to just leave habeas out," Hyde explained, when asked why he decided not to offer his own more limited substitute for Edwards' reform package. "They want several of the things that are in this bill, and they fear that habeas might torpedo the whole [crime] bill, the way it did in the last two Congresses." In mid-April the bill's habeas provisions, as Edwards quipped, "were executed" on a vote of 270 to 159.

Civil rights advocates and constitutional law experts were disappointed by House members' apparent allergic reaction to what Boston University law professor Larry Yackle called "an extremely modest and balanced and fair reform package."

"I would have thought they would have struck a balance," Yackle said. "If you extend the reach of criminal sanctions, you would want to do something to make sure the procedural machinery for protecting rights would be maintained."

"Basic issues of individual rights get lost in the hysteria," said habeas specialist Bruck. "If the House had to vote on the Bill of Rights itself last week, it would have lost by a good margin." Last fall Senate Judiciary Committee chairman Joseph Biden cut his even more controversial habeas provisions out of the Senate crime bill for similar reasons. "We couldn't get it passed," Biden admitted recently in a television interview. "We should leave it for another day; we should help the police with another 100,000 cops."

This sacrifice play by both houses of Congress was echoed by the President and Attorney General Janet Reno, neither of whom supported either the habeas provisions or the Racial Justice Act (RJA), another controversial measure in the crime bill that would allow death-row inmates to use statistical evidence of discrimination to challenge their sentences in court. After habeas's defeat the White House -- apparently aware that it had inadvertently alienated Congressional Black Caucus members through its efforts to court conservatives by not backing the bill's most liberal measures -- finally mustered some political will. It was able to do some last-minute lobbying for the RJA, which ultimately squeaked by in the House on a 217-to-212 vote, but the bill still must clear a hostile Senate to be included in the final package. [Editor's Note: The RJA was not in the final crime bill.]

The scars left by this epidemic of political expediency extend beyond the gaping absence of habeas protections in yet another crime bill. By abandoning habeas corpus to the ravages of the current Supreme Court, both the legislative and executive branches of government have, by default, endorsed the High Court's draconian agenda on habeas reform, thereby weakening the separation of powers. The entire apparatus of the state is now on record that individual rights rank well below the rights of states to preserve their convictions and the call for speed and finality in executing criminal judgments, in such a climate, a person wrongly convicted hasn't got a prayer

Reprinted from The Nation

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