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The New Speed-Up in Habeas Corpus Appeals: a summary by ned walpin
In the 1990s, reforming habeas corpus -- the right to have one's conviction reviewed by state and federal judges -- has become a popular cause for law-and-order politicians and prosecutors. They have argued that death row inmates are able to delay their executions for years by filing repeated and frivolous habeas petitions.

Efforts to reform the habeas petition process culminated in the 1996 enactment of "The Antiterrorism and Effective Death Penalty Act." This new law provides, among other things, guidelines on habeas petitions with the goal of expediting executions. The following is an overview of habeas corpus and what the Antiterrorism Act accomplishes.


A Brief Overview of the Writ of Habeas Corpus

The writ of habeas corpus, Latin for "you have the body," is a centerpiece of Anglo-American law. It is a legal device, developed approximately 300 years ago in England, which individuals can use to have their imprisonment reviewed by a court. If a court decides that the individual is imprisoned without legally sufficient reason, then it will order the individual freed. In fact, over 50 death row inmates have been released since 1976.[1] In practice, the court's granting of a writ usually means the sentence will be modified, for the writ often does not reflect a person's innocence, but a finding that there was a problem in the trial that did not allow a jury or judge to assign the proper punishment. In cases where the defendant has been sentenced to death, a writ of habeas corpus often leads to life imprisonment. Between 1976 and 1991, approximately 47% of the habeas petitions filed by death row inmates were granted.[2]

There are specific procedures that govern the filing for a writ of habeas corpus. First, a defendant must be convicted of a crime. Second, the individual must have exhausted his or her appeals "on the merits" of the trial. Thus, when a person is convicted of a crime, he or she can appeal that conviction to the state court appellate process. If he or she has been unsuccessful in overturning the conviction through the state court process, he or she then can appeal that conviction on the merits to the U.S. Supreme Court. If those appeals are unsuccessful, then the defendant can begin his or her attempt to obtain a writ of habeas corpus. [Examine how the appeal process played out in Clifford Boggess' case.]

Because the writ of habeas corpus is not an appeal of a conviction, but a new civil action by the individual against the state, the first step is to file for a writ in the state trial court. In a sense, this action is like a new trial. If unsuccessful at the trial court, the appeals process begins all over again: the individual first appeals through the state appellate system. At this point, however, similarities between the individual's appeal of his or her conviction and this quest for a writ of habeas corpus end: after exhausting his or her habeas appeals in the state system, the inmate can seek a writ in the federal system.

As this federal petition is somewhat akin to yet another, separate trial, it does not (typically) go straight to the U.S. Supreme Court. Instead, it goes to the U.S. District Court. If the inmate is unsuccessful there, he or she can appeal to the U.S. Court of Appeals, and then to the U.S. Supreme Court.

Why is this process so byzantine? Perhaps because the writ of habeas corpus offers such fundamental protection: it is our legal remedy against unconstitutional and unlawful imprisonment. It is the most basic way the judiciary can protect our life and liberty against governmental tyranny.


The Antiterrorism and Effective Death Penalty Act

In recent years, there have been attempts to streamline the habeas process particularly for death row inmates because it has provided them with what has seemed to many to be endless opportunities to delay their day of reckoning. In 1995, the Supreme Court ruled that inmates, under most circumstances, can file only one petition for a writ of habeas corpus.[3] Thus, an individual cannot spend years developing new petitions on different issues (and hence begin a series of journeys through the state and federal court systems); instead, he or she must place every argument possible in one petition. That same year, Congress eliminated funding for Post-Conviction Capital Defender Organizations. As Ronald J. Tabak succinctly explains, "these resource centers located and/or guided counsel from private law firms in many state post-conviction and federal habeas cases, and represented many death row inmates."[4] Most importantly, these centers did the research necessary for many inmates' lawyers to adequately develop habeas claims, and it is unclear whether many lawyers would willingly take on a capital post-conviction appeal if they had to do all of the evidentiary research themselves.[5] And since many death row inmates are now inadequately defended, or defend themselves, their petitions are far easier to dismiss.

The 1996 Antiterrorism and Effective Death Penalty Act is the most recent -- and perhaps most controversial -- attempt to curb the number of habeas petitions by death row inmates. Its most significant provisions are the following:

1. It purportedly strengthens the prohibition of multiple habeas petitions (although, as we saw, the Supreme Court already had ruled in favor of such a prohibition).[6] A federal Court of Appeals panel now determines whether a successive habeas petition can be heard by the federal District Court. Also, these successive appeals must be limited either to issues of newly discovered evidence "that would have undermined the jury's verdict or that involve new constitutional rights that have been retroactively applied to the Supreme Court."[7]

2. It limits the time in which a federal or state inmate can file a habeas petition in federal court. If an inmate did not have counsel for any post-conviction proceeding, then he or she has one year from the date his or her conviction becomes final to file a federal habeas petition. In other words, the inmate has one year from the final appeal of his or her conviction to file that petition. If the inmate had counsel for any post-conviction proceeding, then he or she has six months to file a federal habeas petition.

3. Perhaps most importantly, federal courts now must presume that state courts' habeas decisions are constitutional, "provided these determinations are neither 'contrary to' nor an 'unreasonable application of' clearly established Federal law as determined by the Supreme Court."[8] Previously, federal courts could consider the federal constitutional issues raised in a habeas petition without deferring to state court holdings on that petitioner's earlier (and rejected) state habeas petition.

The second and third provisions are the most controversial. Critics argue that most inmates will be unable to meet either the six-month or the one-year deadline for filing a federal habeas petition. As Ronald Tabak, following Professor Larry Yackle, argues, "what most advocates of such deadlines fail to recognize is that proper preparation for such a proceeding requires, among other things, a complete reinvestigation of the entire case, which includes a review of the crime itself and factors not presented at trial that might have led to a non-death sentence."[9] Indeed, this deadline is particularly difficult to meet given the demise of the post-conviction defendant resource centers. Critics also argue that the presumption of constitutionality that the federal courts must now give state courts procedures in habeas petitions will make it very difficult for errors in state court to be rectified. "For example, the 'reform' legislation would make it far more difficult to secure a federal evidentiary hearing, even where crucial facts were not developed in state court through no fault of the death row inmate."[10]

The Supreme Court has upheld the Antiterrorism Act's limits on federal habeas petitions, "on the understanding that the Supreme Court itself retains jurisdiction to hear these cases."[11] By so ruling, the Supreme Court declared that the new Act was not a suspension of the writ of habeas corpus. And, in retaining its own "original" jurisdiction in habeas petitions, the Supreme Court does not alter the fates of many, if any, inmates: it very rarely hears a case or petition before it passes through lower federal or state courts.


Ned Walpin is research associate for FRONTLINE ONLINE.

[1] Eric Press, with Daniel Klaidman, "'The Great Writ' Hit," Newsweek, May 6, 1996.

[2] Ronald J. Tabak, "Capital Punishment: Is There Any Habeas Left in This Corpus?" 27 Loy. U. Chi. L.J. 523.

[3] Schlup v. Delo, 115 S. Ct. 851, 867 1995.

[4] Tabak, op. cit.

[5] Ibid.

[6] Tabak, op. cit.

[7] Federal Justice Statistics Program: Prisoner Petitions in the Federal Courts, 1980-96.

[8] Federal Justice Statistics Program, op. cit.

[9] Tabak, op. cit.

[10] Tabak, op. cit.

[11] Linda Greenhouse, "The Supreme Court: Habeas Corpus; Justices Uphold Newly Set Limit On Federal Appeals by Inmates" The New York Times, June 28, 1996, A1.



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