A New New Low

If Republicans on the Senate Judiciary Committee get their way, the United States may soon have a law that could permit state-sanctioned murder.

Sound improbable? Naturally the bill's chief sponsor, John Kyl of Arizona, doesn't say his measure would do that. He's given the bill a genial moniker -- the Streamlined Procedures Act -- and insists that all he's really trying to do is limit “endless death-penalty delays,” put an end to “frivolous” appeals, and let the states get on with the business of executing people. But the fundamental question raised by this radical attack on one of the pillars of our criminal-justice system is this: If someone is charged with capital murder and faces a possible death sentence, and the state progressively deprives him of the means to defend himself, at what point does the judicial process become little more than a legal lynching?

Kyl's bill -- and a companion House measure authored by California Republican Dan Lungren -- should be seen as the apotheosis of that process. Both would effectively obliterate federal habeas corpus review, making it all but impossible for a defendant to challenge the constitutionality of a state-court conviction in federal court. The bills would prohibit a defendant from going into court with evidence that emerged after state-court proceedings concluded, such as evidence deliberately withheld by police or prosecutors, thereby providing incentives for state authorities to violate the law. The bills would also make it more difficult to get post-conviction DNA testing and would bar federal courts from reviewing claims rejected by state courts on procedural grounds. Most importantly, these bills would greatly increase the likelihood that innocent people will be imprisoned or put to death. Judiciary Chairman Arlen Specter, the Republican from Pennsylvania, is backing a substitute bill that is almost as bad, an astonishing reversal for a man who helped lead the fight to thwart Kyl's 1995 attempt to drive a stake through the heart of federal habeas. (Judiciary Committee sources insist that Specter has caved on habeas in exchange for Kyl's support for a measure designed to compensate workers suffering from asbestos-related ailments and put an end to litigation over asbestos claims.)

The underlying premise of the Streamlined Procedures Act is that state courts can invariably be relied on to protect the rights of the accused. Both the Judicial Conference, which speaks for the nation's circuit-court judges, and the Conference of State Chief Justices, whose members should presumably be rejoicing over the demise of any review, disagree. Both have come out in opposition. So have 60 prosecutors and the American Conservative Union, which noted its “profound distrust in the government's ability to ‘get it right'” in the arena of criminal justice, warning that when it gets it wrong, innocent people may be wrongly incarcerated or even executed while the guilty go free to wreak further havoc.

The evidence of just how often state trial courts are wrong on the law and the Constitution is overwhelming. Columbia University Law School professor James Liebman analyzed 23 years of screwups in capital murder cases and showed that in nearly seven of every 10 (68 percent), courts found serious, reversible errors. His study, released in 2000, found that state appellate courts threw out nearly half of all convictions (47 percent), while the federal courts went on to detect “serious error” in fully 40 percent of the cases where state courts discerned nothing wrong. In Kyl's home state, the federal courts overturned 60 percent of the cases cleared by Arizona's appellate courts; in Specter's Pennsylvania, they reversed 40 percent.

One dramatic case was that of Nicholas Yarris, whose appeals on a murder, kidnapping, and rape conviction were barred by Pennsylvania courts because Yarris' lawyer missed a filing deadline. When a federal court concluded that the lower courts were wrong, Yarris was given time to have tests done on highly degraded biological material from the crime that proved his innocence. He was freed after spending 22 years on death row. Had the Streamlined Procedures Act been law, Yarris probably would have been executed.

Yarris' case gets at one of the primary beefs of many conservatives: the claim that executions are being needlessly delayed in federal court. According to Kyl, “many federal habeas corpus cases require 10, 15, or even 20 years to complete.” But a recent Judicial Conference analysis found the median time cases spend in federal district courts is a little more than two years, and concluded that this is not “unreasonable in light of the complexity of capital federal habeas jurisprudence.”

What Kyl really objects to is the fact that convicted murderers now spend, on average, about nine years on death row before they're executed. But that time is often crucial to sorting out the true criminals from those wrongly convicted: Of the 121 men and women who have been released from the nation's death rows in recent decades, 53 (44 percent) spent more than 10 years on death row, and 23 spent 15 years or more. Twelve men whose innocence was proved using DNA spent anywhere from 10 to 21 years in prison.

Of course, justice would be more expeditious if defendants were given quality counsel at the time of arrest and trial. But that costs money many states and counties are unwilling to spend. Instead, they choose the alternative: allowing appellate courts to “fix” some mistakes by overturning convictions, while letting an unknown number of innocents remain imprisoned or worse because they had lousy lawyers. In Alabama there are 136 death-row inmates whose lawyers were paid no more than $1,000. In the last seven years, 94 out of 95 Alabama death-row inmates who filed state habeas corpus appeals did so without a lawyer, because the state's notion of a right to counsel doesn't extend to post-conviction claims. In Texas there are hundreds of inmates awaiting execution whose attorneys were given no more than $500 to investigate their cases.

In a recent address to the American Bar Association, U.S. Supreme Court Justice John Paul Stevens opined that “a significant number of defendants in capital cases have not been provided with fully competent legal representation at trial.” Justice Ruth Bader Ginsburg has expressed similar concerns -- “People who are well represented at trial do not get the death penalty” -- as has Justice Sandra Day O'Connor. In 2001, O'Connor said, “The system may be allowing some innocent defendants to be executed” and tepidly suggested that “perhaps it's time to look at minimum standards for appointed counsel in death cases and adequate compensation.” Sadly, the Court has embraced an appallingly low standard for competence, which increases the likelihood of wrongful convictions and executions.

Justice Stevens also suggested that innocent people might be convicted because state judges in capital cases must stand for re-election, creating “a subtle bias in favor of death.” Clearly judges who must convince voters that they're tough on murderers may be less inclined to challenge a lawyer who hasn't thoroughly investigated a case, hired the necessary experts, raised the most obvious objections to the state's evidence, or adequately cross-examined state witnesses or put up ones of his own. Similarly, elected state appeals-court judges, further conflicted by a desire to hold down taxpayer costs and keep cases moving, may deny the defense funds for investigators or expert witness, rule it “harmless error” when prosecutors withhold evidence, and refuse to consider mitigating or potentially exculpatory evidence whenever an incompetent trial lawyer violates some procedural rule.

That's the current, unembellished state of play in many jurisdictions; the Streamlined Procedures Act would make it worse. Under the Kyl and Specter bills, the attorney general would be given new authority to ascertain whether states are providing defendants with adequate counsel for the purpose of exempting them from federal review. Given that the attorney general is the nation's chief prosecutor, he might seem an unlikely neutral observer. The current one, however, Alberto Gonzales, demonstrated a shocking indifference to effective-counsel issues when he was rubber-stamping death sentences for then–Texas Governor George W. Bush, and there's nothing to suggest he has become any more enlightened since.

Kyl and Specter insist that their bills include exceptions for innocent defendants. Specter told me that this is a special concern of his. But 22 former judges, including William H. Webster and William S. Sessions, both FBI directors in Republican administrations, wrote the committee that “the language of the exception is so narrow that it will cover virtually no one.”

The real horror of these bills is not only that they would make it nearly impossible for many defendants to demonstrate their innocence in federal court but also that no one would ever know they were innocent. With state judges having the final word, the ongoing stream of embarrassing innocence stories in the media would be largely stanched, and no one would be the wiser.

Killing federal review is not just another nail in the coffin for the rights of the accused; it is an endgame. Even if we stipulate that most police officers, prosecutors, and judges are honest, fair-minded, and well-intentioned, these bills are a license to kill for the least diligent and most unscrupulous among their ranks.

Alan Berlow writes frequently about criminal-justice issues.