Vital Legal Protection Is In Jeopardy
Thursday, November 14, 1991
By: Alan Ellis
WASHINGTON – Suppose you are convicted of a crime you did not commit. Couldn’t happen? Don’t believe it. Conservative estimates are that at least 10,000 Americans are wrongfully imprisoned for crimes they did not commit.
Say this did happen and that the evidence against you came from a confession the police forced from you. If you think this couldn’t happen, remember Rodney King of Los Angeles.
Up to now, if you are in prison, you have had the protection of the writ of habeas corpus – the centuries-old legal device by which people wrongfully imprisoned or sentenced to death could raise violations of their constitutional rights or present new evidence that could exonerate them.
The Senate, at the urging of the Bush administration, has already passed a crime bill that would effectively repeal habeas corpus. Various procedural roadblocks are created by the bill including, for the first time, a prohibition against federal courts entertaining a prisoner’s constitutional claim that had already been “fully and fairly” heard by a state court. The “full and fair” standard requires only that the state court hold a procedurally correct hearing. The hearing could be deemed “full and fair” only on the basis of procedure, even if it ended up overlooking or failing to consider constitutional violations.
The Senate bill has been condemned by a bipartisan coalition of judicial representatives, including three former U.S. attorneys general (two Democrat, one Republican), scores of current and former prosecutors, as well as 600 Illinois lawyers who sent a protest letter to Congress and the rest of the federal judiciary.
Fortunately, a bill approved by the House takes a more restrained approach. It would also sharply limit habeas corpus and streamline death row appeals. But it does not include the Senate’s “full and fair” court-stripping language.
Far more constructively, it mandates competent counsel throughout all stages of death penalty cases, recognizing that inadequate legal representation is the principal cause of litigation and delay, particularly in the death penalty appeal process.
Recently in Illinois four death row inmates were identified who were saved from an unconstitutional execution by federal habeas corpus, but who would have been put to death if the Senate bill was a law.
In Kentucky, one-fourth of the people sentenced to death had lawyers who were subsequently suspended, disbarred or imprisoned.
It is not surprising that federal courts find such trials constitutionally flawed 40 percent of the time, through habeas corpus. Yet the Senate bill leaves states free to continue these practices while creating even more procedural obstacles to cleaning up these botched trials on appeal.
Habeas corpus is not some legal technicality. It is the last protection that Americans have against wrongful imprisonment – or even execution. Hacking away at precious freedoms such as these will not fight crime.[/vc_column_text][/vc_column][/vc_row]