Court Tackles New US Law Curbing Death-Row Appeals

Case may redefine balance of power between Congress and courts

Only two months after Congress passed the most sweeping restrictions ever on death-penalty appeals, the Supreme Court today hears the plea of a Georgia prisoner who is challenging that law.

The case, which has been controversial from the moment the court justices decided to take it in May, examines a sacrosanct area of American law - the right of appeal, also known as habeas corpus. It also raises some dramatic questions about the ability of Congress to strip the federal courts of long-held powers.

The new law, sponsored by Sen. Orrin Hatch (R) of Utah, speeds death penalties by reducing to one year the time a prisoner may appeal a case. Many politicians and jurists alike have long been irked by the lengthy appeals that death-row inmates often use to delay their executions.

Critics, however, see passage of the death-penalty act as a politically expedient move that has cheapened long-held constitutional rights.

For the Supreme Court to hear a case so late in the term is itself unusual. Regular hearings ended in April. Yet in a rare move, the conservative wing of the court agreed, only nine days after President Clinton signed the Anti-Terrorism and Effective Death Penalty Act into law this spring, to rule on the new law, using the Felker case. It did so over the protests of the four moderate justices, who said that to rush a ruling by the end of June in a complicated and sensitive area of law was "unnecessary and profoundly unwise."

Buried in the mechanism of the new law is a contested provision that, for the first time in 100 years, would limit the power of federal courts to review prisoners' appeals. Rather than allowing a death-row inmate direct access to the federal courts (or in the Felker case, the Supreme Court), those courts would defer to state courts, except in the rarest cases.

Whether the Felker case is significant or trivial depends on how far the Supreme Court cedes power to Congress on this point. In the past, the court has agreed that Congress has power to limit the high court. But it has not taken the crucial next step of saying Congress actually may do so.

Federal courts are the means for enforcing federal statutes ranging from civil rights to abortion. A weakening of the courts' role in an area like habeas corpus raises serious constitutional issues#, scholars say, because it suggests Congress could "outflank" Supreme Court rulings whenever it did not like them. In a 1990 case, the court struck down a law that made it a crime to burn an American flag - a law that Congress had enacted in an effort to reverse a previous high court ruling.

Today's case concerns felon Ellis Wayne Felker, convicted in 1982 of raping and murdering a college student in Georgia. He was scheduled to be executed the first week of May.

His case is literally the first to be touched by the death-penalty act. Mr. Felker wants to present new evidence in his case. But, under the new law, he was denied a federal review by a three-judge panel. So he appealed directly to the Supreme Court under a little-known provision called "original review."

Today's case does not open all the constitutional questions raised by Congress's alteration of habeas corpus.

"The Felker case is just the tip of the iceberg," says Boston University law professor Larry Yackle. "But it is important since it deals with the Supreme Court's jurisdiction and its ability to supervise federal courts."

Critics say the conservative members of the Supreme Court simply want to "rubber stamp" Congress's law, with which they agree. Others say the court took the case to forestall a spate of habeas petitions that the new death-penalty law was expected to bring.

A number of scholars think the high court will issue an opinion that finds answers in three different areas: It will keep the death-penalty process ongoing. It will curb a flood of direct Supreme Court appeals. Yet it will also check congressional attempts to subvert federal powers by overturning part of the death-penalty act.

If the court does not touch any part of Congress's death-penalty act, the Felker case could well be a landmark, ceding to Congress federal powers the court has held since habeas corpus was enshrined in law in 1867.

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