A Righteous Rejection : Judicial Conference Disputes Rehnquist Proposal

The indispensability of an independent federal judiciary was demonstrated once again last week, when the Judicial Conference of the United States rejected a proposal supported by Chief Justice William H. Rehnquist that further restrictions be placed on the ability of prisoners under sentence of death to file petitions of habeas corpus in U.S. courts.

The 26-judge conference is the federal judiciary’s top policy-making body, and its courageous action came less than one week after a perverse ruling by Rehnquist and the four other members of the U.S. Supreme Court’s new conservative majority. In that instance, the court held that prisoners on death row no longer may seek writs of habeas corpus when decisions in subsequent cases render unconstitutional procedures through which they were sentenced to die. At present, more than half of all death sentences are reversed by federal habeas corpus proceedings.

Legally speaking, habeas corpus is nothing more than a court order directing that the authorities holding someone in custody demonstrate to the court their legal justification for restricting the imprisoned person’s liberty. However, the importance that the Framers attached to the common law’s “Great Writ of Liberty” is attested to by the fact that its enumeration in Article I of the basic Constitution precedes the Bill of Rights itself.

The proposal backed by Rehnquist--and drafted by a committee he hand-picked--would have given prisoners from states that provide inmates with appellate counsel only one chance to seek a federal writ of habeas corpus unless subsequent petitions raised “serious doubt” concerning the person’s guilt. The Judicial Conference rejected this notion and recommended that limitations on federal review be granted only to those states that provide the accused with competent representation at all levels of the proceedings, beginning with the trial itself. Moreover, the conference said, federal judges should be able to hear habeas corpus petitions from prisoners appealing not only their verdict of guilt, but also the appropriateness of their death sentences.

The fight over restriction of habeas corpus now moves to Congress, where Sen. Joseph R. Biden Jr. (D-Del.), chairman of the Senate Judiciary Committee, has introduced legislation incorporating provisions similar to those endorsed by the Judicial Conference. The majority of Americans that approves of the death penalty, as well as the opponents of capital punishment, ought to be skeptical of any attempt to restrict their access to relief through habeas corpus.

As Justice Felix Frankfurter wrote in 1953, “The uniqueness of habeas corpus in the procedural armory of our law cannot be too often emphasized. . . . (Habeas corpus) does not mean that prison doors may readily be opened. It does mean that explanation may be exacted why they should remain closed. It is not the boasting of empty rhetoric that has treated the writ of habeas corpus as the basic safeguard of freedom in the Anglo-American world. . . . Its history and function in our legal system and the unavailability of the writ in totalitarian societies are naturally enough regarded as one of the decisively differentiating factors between our democracy and totalitarian governments.”