A Right of Citizens Abandoned

HOUSE Republicans have broken their ``Contract With America.'' In crime legislation passed earlier this month they abandoned their Contract promise to improve a centuries-old remedy for unlawful imprisonment with reforms designed by retired Supreme Court Justice Lewis F. Powell and endorsed by Chief Justice William H. Rehnquist. If Republicans have their way, they will deprive Americans of rights enjoyed since the Republic's founding.

From the beginning, the Constitution has forbidden Congress to suspend the writ of habeas corpus. By preserving the writ, the Constitution protects Americans from the worst government oppression of all - jailing without due process of law.

Since 1789 Congress has kept the Founders' faith, maintaining the right of all citizens at all times to federal court review of the legality of their imprisonment or death sentences.

Recently, habeas corpus has been criticized for having too many stages and taking too long. The plan endorsed by Justices Powell and Rehnquist slims down and speeds up the process, making it swifter but no less sure. That was the plan the Republicans wrote into the Contract. But that was not the bill the House passed. Instead, resorting to a classic bait-and-switch, House Republicans slipped in a last-minute ``amendment.'' The amendment does not slim down or speed up habeas corpus; it slaughters it.

Although couched in legalese, the amendment's words have a meaning no judge can mistake: Even if an egregious violation of rights has occurred, a federal court challenge to the violation must fail. Under the amendment, no violation can be cured unless the state court that committed it acted ``arbitrarily.'' In the language of the law, a decision is not ``arbitrary'' if it is simply wrong, or even very wrong, but only if it is so wrong that the judge making it was irrational - the legal equivalent of a drunk or a madman.

The Supreme Court tried an irrationality test once. In an infamous 1915 case the court refused to call Georgia judges irrational for upholding a death sentence that almost assuredly was imposed under the sway of an armed mob. Justice Oliver Wendell Holmes Jr. dissented from that denial of habeas corpus. He, too, refused to call the Georgia judges irrational, but said the proper test was not whether they were crazy but whether they were wrong. In 1923, Holmes persuaded the court to abandon its disastrous irrationality-test experiment. Now the House has resurrected it.

The House's standard would have prevented most of the important past habeas corpus decisions, including Holmes's celebrated 1923 decision shielding five black men sentenced to die by jurors intimidated by an armed lynch mob.

The House proposal cannot become law without Senate approval. But a similar plan is about to emerge from another back-room deal, this time among Republicans on the Senate Judiciary Committee. The terms of the deal are likely to be dictated by the same small group of state attorneys general whose 11th-hour letter prodded House Republicans to break their Contract and the Founders' sacred promise.

There is still time for senators to show that solemn promises to the American people, a fair legislative process, and 206-year-old constitutional rights mean more in the Senate than in the House. Restoring the Contract's original promise to reform the writ of habeas corpus without gutting it would be a good start. The Opinion/Essay Page welcomes manuscripts. Authors of articles we accept will be notified by telephone. Authors of articles not accepted will be notified by postcard. Send manuscripts by mail to Opinions/Essays, One Norway Street, Boston, MA 02115, by fax to 617 -450-2317, or by Internet E-mail to OPED@RACHEL.CSPS.COM.

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