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Debate Club
DEBATE CLUB 8/1/05

How Important is Habeas?

Theodore Frank and David Bruck debate.

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Habeas corpus, through which a prisoner can challenge the authority of a prison to hold him, has long been considered a crucial tool for prisoners trying to have their sentences overturned. But since the 1996 Antiterrorism and Effective Death Penalty Act—a series of laws designed to "deter terrorism" and "provide for an effective death penalty" passed in response to the Oklahoma City bombing—attempts to limit habeas have become more and more common as, according to Arizona Senator Jon Kyl, habeas petitions have continued to increase.

Next month, the Senate will consider a bill designed to limit what Kyl calls "endless death penalty appeals" under habeas provisions. Critics argue that the new bill would gut constitutional protection for criminals and sanction the execution of the falsely convicted.

Should Congress limit habeas appeals?


Ted Frank is Resident Fellow and Director of the American Enterprise Institute Liability Project. David Bruck is Clinical Professor of Law and Director of the Virginia Capital Case Clearinghouse at Washington and Lee University.

Frank: 8/1/05, 09:22 AM
David, I'm very much looking forward to our discussion this week, and it's an honor to share this virtual platform with someone who has had so much first-hand experience with capital cases.

The Streamlined Procedures Act of 2005 is aimed at the perceived problem that too many federal judges misuse their habeas powers to judicially nullify or unreasonably delay death sentences, a tactic that is especially objectionable in cases where there is no dispute over the guilt of the convicted murderer on death row. It is not unusual for the Ninth Circuit to stall death sentences for years through rulings that are, at best, highly questionable; witness the number of summary and 9-0 reversals. District and appellate judges in the Third Circuit all but abolished the death penalty in Pennsylvania by permitting claims to be perpetually re-litigated or delayed indefinitely. Such delays are especially agonizing for families of victims. If the judges are acting so lawlessly, one would think the proper remedy is impeachment. But there is difficulty in distinguishing impeachment for lawless decisions from impeachment for unpopular rulings, which in turn poses danger to the separation of powers. It is not unreasonable for Congress to instead seek to circumscribe federal judicial discretion, by limiting it to cases where states have not provided adequate collateral review procedures or where the petitioner claims actual innocence through newly discovered evidence.

The Act's limitation on federal jurisdiction for capital habeas occurs only in states that the attorney general (subject to federal review by the D.C. Circuit) certifies as providing competent counsel to indigent capital defendants throughout the state-court collateral-attack process. Such a capital defendant can use state-provided counsel to ask the trial court to overturn the jury's sentence; appeal successively on federal issues to an intermediate court of appeals (in the vast majority of states with three levels of courts), a state high court, and the United States Supreme Court; and then have the opportunity to bring a collateral attack successively to those same three or four courts. That's as many as eight opportunities to correct federal constitutional error. And even after all those appeals, that convicted defendant can still seek habeas relief from lower federal courts if he or she has a claim of innocence, or even a claim of a federal constitutional right established retroactively by the Supreme Court.

There are other aspects to the Act, of course, but this particular one seems so reasonable and incremental that I'm surprised at the hyperbolic outrage addressed at the Act and the claims that it will "gut" defendants' rights. What's the rationale for an eighth, ninth, and tenth level of appellate review on purely federal issues of constitutionality? In a world where the death penalty is both constitutional and democratically established, what's the alternative response to the systemic problem of the substantial number of federal judges who refuse to apply the rule of law in capital cases?

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Bruck: 8/2/05, 08:59 AM
I'm also looking forward to discussing this issue with you, and I hope we'll have shed a little light before we're done.

You portray the current round of habeas corpus "reform" as a modest response to agenda-driven liberal judges. The actual provisions of the misnamed "Streamlined Procedures Act" don't seem to me to match that description at all. But before we get to that, let's step back and look at why there are lots of habeas petitions in the federal courts.

In 1968, when Richard Nixon first turned "law and order" into a staple of American political campaigning, there were about 200,000 prisoners in this country. Now, many tough-on-crime election campaigns later, there are 2 million, and we're locking up a higher percentage of our own citizens than any other nation on earth. Life imprisonment without parole, a rare punishment for most of our history, is now commonplace (and not just for murderers). And we're completely alone among all the western industrial democracies in our retention of the death penalty.

Any system that punishes so many people so severely is going to make serious mistakes. The state courts are supposed to catch and correct most of these mistakes. But most state judges have to run for re-election. Wrongly-convicted or wrongly-sentenced prison and death row inmates are not exactly a formidable voting bloc, while people who don't like soft-on-crime judges are. Add to the mix the fallibility of all government functionaries—including police, prosecutors, and courts—and the fact that most criminal defendants have to rely on underpaid and overworked court-appointed lawyers, and we should be able to see that we've assembled the ingredients for a lot of injustice: it's only tolerable because for all of us who aren't in prison, what's out of sight is out of mind.

Federal habeas corpus is supposed to keep this vast punishment apparatus from spinning completely out of control. The idea is that in every state, at some point before the execution takes place or the cell door is welded shut, an independent, life-tenured federal judge can evaluate whether the conviction and sentence satisfy the minimal nationwide requirements of the Bill of Rights. To be sure, in the vast majority of cases (over 99 percent in the Fourth Circuit) the federal courts uphold the state court verdicts and sentences. (The Third Circuit, which you single out for special criticism, rules for the prosecution about nine times out of ten). But the prospect of some sort of federal quality-control down the line helps keep politically-vulnerable state judges from simply taking the path of least resistance and ruling for the prosecution in every single case.

The habeas safety net is already pretty tattered, thanks to many years of Rehnquist Court cutbacks and a sweeping revision by Congress just nine years ago. The SPA would effectively finish habeas off, leaving federal courts to passively contemplate—but almost never be able correct—the kinds of errors and injustices that occur in real cases.

You may not agree with that assessment, but in debating federal habeas, let's at least keep in mind what it's there for.

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