Congress Sets Stage For Swift Executions

ONE of the most significant alterations of American law since 1867 is quietly heading for a vote on Capitol Hill - foreshadowing a battle between Congress and the Supreme Court over the powers of the federal courts.

The Effective Death Penalty bill would dramatically change the terms of habeas corpus - a revered but often-misunderstood right mentioned in Article 1 of the Constitution. The bill would limit for the first time the ability of convicted prisoners to have their cases reviewed and would diminish the power of federal judges to disagree with state court decisions.

"The current bill could fundamentally restructure the US justice system by changing the manner in which the Bill of Rights is enforced," according to Larry Yackle of Boston University.

Senate Judiciary Committee chairman Orrin Hatch (R) of Utah is passionate about reforming habeas, which he says allows death-row inmates to clog up the courts with "frivolous appeals." The bill could come up as early as next week: Senator Hatch has tied its passage to the Oklahoma City bombing anniversary on April 19.

Yet reform of habeas corpus, a Latin phrase meaning "produce the body," is bitterly opposed by an eclectic mix of legal scholars, civil libertarians, conservative gun owners, and leftist groups. The Justice Department and the Office of Management and Budget have issued statements saying parts of the reform appear to be unconstitutional.

Last week the US Supreme Court issued a pointed (5-to-4) habeas opinion, authored by Justice Stephen Breyer, stating that last-minute first appeals by death-row inmates, even though filed past the deadline, will be heard.

Habeas corpus is "aptly described as the 'highest safeguard of liberty,' " Justice Breyer wrote, quoting a 1961 Supreme Court decision.

Among habeas-reform believers and disbelievers, the issue is of nearly apocalyptic proportions.

Legal conservatives are adamant that prisoners and lawyers opposed to the death penalty make a mockery of the courts and the victims' families by their many petitions and block a legitimate punishment. They say that since 1867, when current habeas statutes were created, the federal courts have run roughshod over state court rulings.

Libertarians feel equally strongly that habeas petition is the bedrock of US justice, crucial to the rule of law particularly in death cases, and that to limit an appeal in any way does violence to the Constitution.

The public, meanwhile, often sits on the sidelines, confused about just what the odd Latin phrase really means and why it causes such angst.

Habeas corpus is an independent civil action taken by a prisoner to show he or she is being held in detention in violation of constitutional rights. This typically means a faulty trial - evidence withheld, jury tampering, or ineffective counsel, to name a few.

While habeas is associated with capital cases, it actually applies to any individual held in custody. In fact, contrary to public impression, only 1 percent of US habeas cases filed each year are by death-row inmates, according to a recent Justice Department study.

Habeas petitions can be filed from either state or federal prisons. But the overwhelming number are from state prisons, because states try the majority of criminal cases and constitutional safeguards in state courts are famously less strict.

When a prisoner has exhausted habeas petitions in a state, he or she can petition the federal courts for review. In death cases, most serious petitioners eventually end up in the Supreme Court - and most get denied. Courts agree to review between 2 and 4 percent of all habeas cases, including those from death row. (Nearly all are filed by prisoners without legal counsel.)

Yet the record of habeas death-penalty cases taken by the Supreme Court is often raised by scholars.

A study by New York's Columbia University Law School found that of the 600 lower-court capital cases reviewed by the Supreme Court under habeas petitions between 1978 and 1995, 40 percent were faulty or contained evidence of innocence. Fifty-four individuals have been released from death row since 1976.

Last year, the Supreme Court found that Louisiana police had withheld evidence that could prove the defendant innocent. (Police did not disclose to the jury or the defense that an eyewitness to the crime said the killer was 5 feet, 4 inches tall and weighed 150 pounds. The man convicted was 6 feet, 1 inch and weighed 125 pounds.)

If Congress passes the habeas legislation, prisoners will have one year to file a habeas petition. In addition, federal courts will be able to reverse a state-court ruling only if a federal judge can prove the state court was "unreasonable" in its ruling under current Supreme Court precedents.

Even moderate observers like Harvard University law professor Daniel Meltzer say these changes will set impossibly high standards for federal judges. "It will be very hard for a federal judge to find a state judge 'unreasonable,'" he says.

Federal law clerks will find themselves reviewing petitions that show constitutional violations, but they will be unable to take the cases, says Leslie Hagin of the National Association of Criminal Defense Lawyers.

For this reason, many scholars say the change in habeas will inevitably lead to a fight between the Supreme Court and Congress over power to interpret cases under the Constitution.

Critics say the bill represents the de facto end of a historic right: "From 1789, when the first judiciary act was passed, until 1996 every state prisoner has had a right by filing a writ to get independent judicial review," says James Liebman, a Columbia University law professor. "That ends with this bill."

But Paul Cassell, a University of Utah law professor who consults with Hatch, says that in the past 20 years state courts have become much more sensitive to prisoners' rights. "Since these courts have improved, why do we need to spend more time litigating?" he says. "Habeas is still there [under the reform bill]; it is just speeded up."

"It is time that federal courts stopped second-guessing state courts and constantly reopening cases," says Thomas Getty, special assistant to California Attorney General Daniel Lundgren, a principal proponent of habeas reform.

Last week, the Clinton administration sent legal counsel Abner Mickva to House habeas reform leader Henry Hyde (R) of Illinois with a habeas compromise. Hatch used the White House foray to say on the Senate floor that Clinton is soft on crime, a tough charge in an election year.

Yet Dr. Yackle is puzzled by GOP habeas reformers' claims that the new bill will speed up executions.

"There are 20 pages of technical legal language in the bill that will take five to six years to deal with," Yackle says. "There is scarcely a line that won't require a good bit of litigation."

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