PERSPECTIVE ON CAPITAL PUNISHMENT : Wolves Fighting Crime Go ‘B-a-a-a’ : It’s one thing to oppose the death penalty, another to pretend support while erecting rules to thwart it.

The House of Representatives is poised to take a major step backward in the fight against violent crime. In a bill purporting to be an anti-crime measure, the House Judiciary Committee has sent to the floor a proposal that would effectively abolish the death penalty in this country.

An overwhelming majority of Americans believe that the death penalty is a just punishment for the most heinous crimes. Thirty-six states have adopted capital punishment. Yet, for more than a decade, these laws have been rendered almost unenforceable by a system that allows convicted murderers to delay indefinitely, and ultimately to avoid, imposition of their sentences. After exhausting all appeals, murderers are allowed to file endless habeas corpus petitions in state and federal court, raising largely technical challenges to their convictions and sentences.

The writ of habeas corpus originally was a legal device used to challenge attempts by the government to seize and detain an individual without trial. During the Warren court era, the writ was converted into a right to multiple appeals of issues already decided. This radical expansion of the scope of habeas corpus has allowed inmates sentenced to death to nullify their sentences through strategic delay.

As of 1988, the average delay from time of sentencing to time of execution of a capital sentence was almost seven years. In that same year 296 individuals were convicted of first-degree murder and sentenced to death while only 11 capital sentences were actually carried out. Obviously, such delay undermines the deterrent and retributive force of the death penalty and breeds frustration and disrespect for our criminal justice system.

The case of Robert Alton Harris illustrates the point. In 1978, while on parole for voluntary manslaughter, Harris shot two teen-age boys to steal their car for a robbery. Later, he confessed to the murders. He was convicted of first-degree murder and sentenced to death by a California jury in 1979. In 1981, the California Supreme Court upheld this conviction and sentence, finding that “none of the many contentions raised by (Harris) has merit.” Since that time, Harris has filed several state and four federal habeas petitions, each of which has been rejected. His sentence has still not been carried out.

A panel of jurists chaired by retired Justice Lewis F. Powell Jr. has offered a solution to this problem. If a state provides those on Death Row with counsel at state expense in state habeas corpus proceedings, the prisoner will get only two “bites at the apple”--one state proceeding and one full federal review. No further habeas corpus petitions could be filed unless a claim of factual innocence were raised. The Bush Administration, the National Assn. of Attorneys General and the National District Attorneys Assn. support the principles behind Justice Powell’s reform proposals. The House bill, far from curing present abuses, would make matters worse.

First, the House proposal rejects the Powell Committee’s quid pro quo principle. It affirmatively encourages the filing of successive habeas corpus petitions containing claims unrelated to guilt or innocence. At the same time, it imposes requirements for state-appointed counsel that very few lawyers can meet and even fewer state taxpayers can afford. Under the House proposal, convicted murderers like Harris would go on avoiding punishment by raising alleged technical “defects” in their sentences--”defects” that have nothing to do with their guilt or innocence.

Second, the House proposal overrules two recent Supreme Court decisions that attempt to provide some reasonable safeguards against habeas corpus abuse. In Teague vs. Lane, the Supreme Court held that prisoners cannot use habeas corpus to challenge their convictions based on judicial decisions that were not even rendered at the time of their trial and appeals. The House proposal overrules Teague, and thus renders every criminal conviction in the nation subject to constant challenge based on cases that have not yet even been decided. The Judiciary Committee proposal also overrules the court’s decision in Wainwright vs. Sykes. The Sykes decision requires that defendants follow state procedural rules in order to preserve claims for federal review, thus preventing criminal defendants from “sandbagging,” that is, from holding back their claims in state court only to raise them years later in a federal proceeding. The House proposal would effectively reward defendants who ignore state procedural rules.

It is one thing to openly and honestly oppose the death penalty outright--a position the American people have rejected. It is another thing entirely to proclaim support for the death penalty in order to curry political favor while at the same time voting to erect a labyrinth of procedural rules to prevent the penalty from ever being applied. This crime bill is a sheep in wolf’s clothing.