Justice Demands Reform in the Appeal Process : Death row inmates abuse constitutional protections while their victims’ families suffer.

California’s death row population has swelled to 432 inmates. Only two executions have occurred here in 27 years.

At the rate that federal courts have recently processed habeas corpus petitions--secondary appeals in federal courts of state court death penalty decisions, alleging violations of constitutional rights--it will take 200 years to bring these convicted murderers to justice.

We have strayed from the idea that the trial is the “main event” in the criminal justice system. The assassin who killed President McKinley on Sept. 6, 1901, was captured, tried and executed by Oct. 29, seven weeks later.

Yet Robert Alton Harris, who confessed seven times to the brutal 1978 murders of two teenage boys in San Diego, was able to string out his death penalty appeals for 13 years. In what one federal judge termed a “textbook case” of abuse of the federal habeas corpus process, 70% of Harris’ 141 major legal maneuvers to delay his punishment occurred in federal courts.

One does not have to wish to return to the legal timelines of the McKinley era to recognize that our current federal appeals system is unfair to crime victims and their families and in drastic need of reform.

Since 1982, while serving on the House Judiciary Committee, I have worked to amend the federal habeas corpus statute, to return to the principle that the trial, not collateral appeals years later in federal courts, is the main event. Finally, we are on the verge of victory. The Specter-Hatch habeas corpus reforms (paralleling Rep. Chris Cox’s amendment in the House) are incorporated into the Senate anti-terrorism bill, soon to be considered by the House. They include these changes:

Federal judges must grant deference to state court judges. In our criminal justice system, the states have primary responsibility for the enforcement of criminal law. As Supreme Court Justice Anthony Kennedy wrote in McCleskey vs. Zant: “Our federal system recognizes the independent power of a state to articulate societal norms through criminal law; but the power of a state to pass laws means little if the state cannot enforce them.”

Just as important, state courts are coequal institutions with their federal counterparts and have the same responsibility to uphold the U.S. Constitution. To permit intrusive federal relitigation of matters properly and reasonably decided in state courts is to relegate state courts to mere tryouts for what will be the determinative federal habeas corpus hearings. This gives the mistaken notion that wearing a federal judicial robe somehow conveys greater wisdom than a state one.

The reform legislation--a key element of the GOP’s “contract with America”--establishes appropriate standards of deference to state courts. A federal judge can grant an inmate’s habeas corpus petition only if the state court judge’s decision is found to be arbitrary or unreasonable.

The prisoner is allowed only one habeas corpus petition--”one bite at the apple”--to prevent the abuse of stringing out appeals, one after another, year after year. A death row inmate’s dexterity at procedural gamesmanship should not be rewarded.

Prisoners and courts are required to abide by strict time limits. The legislation establishes a one-year deadline, under most circumstances, for a convicted criminal to file a habeas corpus petition. It sets deadlines for federal district and appellate court decisions.

Some in Congress will still fight habeas corpus reform because they don’t want to scale back the rights of convicted killers. Sen. Edward M. Kennedy (D-Mass.) recently lamented that the proposed reforms “will strip away venerable constitutional protections.”

What about the “constitutional protections” for the victims of convicted killers on death row? Don’t they deserve that justice be carried out?

Nearly 170 people died in the Oklahoma City bombing, a tragedy of heart-wrenching magnitude. We cannot ignore the fact, however, that those violent deaths are really a multiplication of what occurs on the streets of California every single day. More than 700 human beings died violent deaths at the hands of California’s 432 death row inmates. While these convicted murderers flood state and federal courts with briefs and petitions, the mothers, fathers, brothers, sisters and children of their dead victims suffer the pain of wounds that wait to be healed.

1995 can be the year that their healing finally begins. If not, the credibility of this essential system that we call justice will suffer yet another body blow. How many more can it take?