Congress May Limit Death Penalty Appeals

With little fanfare, Congress is poised this week to approve a fundamental change in the Habeas Corpus Act and to strip federal judges of most of their power to review the cases of state death-row inmates.

The legal changes--long sought by state prosecutors and the families of murder victims--are attached to an anti-terrorism bill that Republican leaders hope to pass by Friday, the one-year anniversary of the Oklahoma City bombing.

Although the anti-terrorism provisions have divided Republicans and provoked bitter debate, the sweeping changes affecting death penalty cases have won broad support.

The authors of the bill say they want to halt the seemingly endless and duplicative appeals for convicted killers.

“Something is seriously wrong when a John Wayne Gacy murders 27 young boys and it takes 14 years from the time of his sentencing to the time he is executed,” said House Judiciary Committee Chairman Henry J. Hyde (R-Ill.).

California Atty. Gen. Dan Lungren has made the legislation his top priority in Washington. It took the state 13 years after a conviction to execute San Diego murderer Robert Alton Harris, and 14 years after conviction to put to death the Los Angeles area “freeway killer,” William G. Bonin.

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Although California restored capital punishment in 1977, and hundreds of murderers have been sentenced to death, Harris and Bonin are the only ones so far who appealed and have been executed. (In 1993, convicted murderer David Mason refused to appeal and agreed to be executed.)

In the cases of Harris, Bonin and Gacy, no one disputed their guilt. But the current law allows convicted capital murderers to fight through at least two rounds of appeals, one in the three-tiered state court system and a second in the three-tiered federal court system.

The pending bill makes four major changes to limit federal appeals.

* First, federal judges may not reverse a state conviction or death sentence unless it resulted from “an unreasonable application of clearly established federal law.”

For more than 40 years, federal judges have had a mostly free hand to review state convictions, but Congress now wants them to take a hands-off approach.

* Second, inmates whose appeals have been rejected by state judges will get only one chance to appeal in federal court. The only exception is for new evidence that gives “clear and convincing” proof the inmate is not guilty.

In the past, state inmates have filed one appeal after another to keep themselves alive, but the Supreme Court has restricted that practice in recent years.

* Third, inmates will have only one year to file their appeals in federal court. In the past, inmates have delayed as long as possible.

Earlier this month, the Supreme Court considered the case of a Georgia inmate who waited until the day of his execution--nine years after his conviction--to file his first appeal in federal court. Nonetheless, the justices on a 5-4 vote said the law entitled him to one appeal. The pending bill would prevent such delays.

* And, fourth, federal judges would have deadlines to decide appeals. Recently, California prosecutors have complained that federal judges have held onto death penalty cases for four and five years before deciding appeals.

The new law would give a federal district judge six months to decide on an appeal. The inmate then could go to the U.S. Court of Appeals, which would be required to act within another six months.

“This [new law] could be very significant for us in expediting capital cases,” said Dane Gillette, a deputy state attorney general who coordinates California death penalty cases.

As of March 1, the state had 436 inmates on death row. About one-third of those inmates have appeals pending in federal court, Gillette said.

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Dejected civil libertarians and defense lawyers say Congress is about to strip away the legal safeguards that prevent the execution of possibly innocent persons.

The changes “are a nightmare,” said Natman Schaye, a Tucson lawyer and a death penalty expert for the National Assn. of Criminal Defense Lawyers. “We’ve always believed the Constitution guarantees your rights, but now if you are convicted in a state court, it’s tough luck.”

In 40% of capital cases handled by federal judges between 1978 and 1995, either the conviction or death sentence was ultimately reversed because of constitutional violation, according to Columbia University professor James Liebman.

At the end of last year, 3,046 inmates sat on death row in the 38 states with capital punishment.

The rate of executions has been rising slowly in the last decade, but the number of inmates put to death is quite small compared to the large populations. Last year, 56 inmates were executed.

Critics of the pending changes frequently invoke the “Great Writ” of habeas corpus and suggest that Congress is about to scrap a basic principle of American law. But the current system of appeals has a lesser and more disputed lineage.

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In old England, a writ of habeas corpus allowed judges to bring before them persons who had been thrown into a dungeon by the king’s men.

In America, the authors of the Constitution included a clause assuring “the privilege of writ of Habeas Corpus shall not be suspended.” It protected the basic right to a trial. If, for example, a citizen was held by the military, a writ could be used to bring him before a civilian judge for trial.

After the Civil War, the Reconstruction Congress passed the Habeas Corpus Act of 1867 to protect the rights of the newly freed slaves. It gave federal judges the power to take on “all cases where any person may be restrained of his or her liberty in violation of the Constitution.”

Like many Reconstruction-era measures, this one fell into disuse in the late 19th century. But in the mid-20th century, as the civil rights movement blossomed, the principle of habeas corpus was revived and began to take on a second meaning.

Distrustful of Southern state judges, the high court gave the federal judiciary the power to review criminal convictions with a fresh eye. In a 1953 ruling, the justices said the old Habeas Corpus Act permitted federal judges to rehear the claims of state prisoners “on the merits, facts or law.”

That was followed by two decades in which the liberal-dominated Supreme Court strengthened the constitutional rights of criminal defendants through dozens of rulings. The new procedural rights were employed in state trials. Then, if convicted, the defendant could claim again in federal court that his rights had been violated.

In recent years, however, many congressional Democrats have agreed that duplicative appeals have gone too far.

“No one is standing up to take a spear in the chest on this one,” said a rueful Paul Levine, a spokesman for the criminal defense lawyers.

Congressional aides have said they expect a heated debate this week on parts of the anti-terrorism bill, but routine approval for the provisions that reshape the death penalty law.

(BEGIN TEXT OF INFOBOX / INFOGRAPHIC)

Executions in America

The increase in executions in recent years is partially the result of inmates exhusting the appeals the process.

Executions since 1976

1995: 56

Executions Since 1976 by method used**

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States Executions Lethal Injection 32 188 Electrocution 11 123 Gas Chamber 7 9 Hanging 4 3 Firing Squad 2 2

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** some states authorize more than one method

Executions by Region

SOUTH: 271

WEST: 23

MIDWEST: 29

NORTHEAST: 2

TEXAS: 106

Source: Death Penalty Information Center