By Deborah Yaffe
The Recorder
April 22, 1996
Ready or not, federal habeas corpus reform is finally here.
To prosecutors, the anti-terrorism bill that President Bill Clinton may sign as early as today will usher in a bright new morning of efficient and fair criminal justice. To defense lawyers, the future looks more like a dark night of draconian restrictions on fundamental rights.
Ironically, though, both supporters and opponents agree the initial effect of the bill, which many describe as poorly drafted, is likely to be litigation-spurred delays in executions -- even though the bill was pushed by conservatives fed up with the slow grinding of the capital punishment machinery.
"All the little 'ands' and 'ors' are going to be challenged," predicted Richard Dieter, executive director of the anti-capital punishment Death Penalty Information Center. "Every word will be challenged."
The anti-terrorism bill aims to cut down delays at both ends of the capital habeas process, requiring federal judges to rule on capital cases within months and for the first time giving inmates a time limit for filing federal habeas petitions.
For most inmates, the time limit is a year; for death row prisoners, the window narrows to six months if states adopt procedures for appointing and paying competent counsel to handle state -- though not federal -- post-conviction work. And the bill raises the standard for submitting a second habeas petition, requiring inmates to convince a panel of judges that any subsequent petition contains compelling new evidence of innocence.
But most important, say both supporters and foes of the new law, the anti-terrorism bill would require federal judges to defer in most cases to state courts' interpretations of the federal Constitution -- potentially turning federal habeas review into little more than a once-over-lightly look at past decisions.
The new bill is a true reform of an out-of-control process, say prosecutors. Fourteen years after President Ronald Reagan first proposed such changes, "the credibility of our criminal justice system is even more strained by the rampant abuse of habeas corpus by convicted criminals -- particularly death row inmates," California Attorney General Dan Lungren wrote Clinton last week.
Lungren and his capital case coordinator, Deputy Attorney General Dane Gillette, have been vocal backers of habeas reform.
But defense lawyers say the bill is a dangerous retreat from fundamental rights.
"You're not allowing the final arbitrators of the federal Constitution to enforce its provisions," said San Francisco solo practitioner Timothy Foley, who is currently handling three capital cases. "I hope we're not going back to a Civil War-era situation where the states simply do what they want and there's no safety net."
Whatever its pros and cons, the new law likely won't start to bite -- or to speed up the executions of the nation's 3,061 death row inmates -- until after years of litigation over its meaning, say those on both sides of the issue.
"It's not an extremely well-written law," acknowledged Kent Scheidegger of Sacramento's Criminal Justice Legal Foundation, which supports the measure.
The bill leaves open a host of important questions, including whether its time limits apply retroactively, barring the federal courthouse door to prisoners whose state convictions became final more than a year ago.
Nor is it clear, say some opponents, that California's procedure for appointing and paying appellate counsel for death row inmates will meet the bill's requirements, and therefore activate the most stringent time limits on filing.
And some, including Northern District Chief Judge Thelton Henderson, say Congress' effort to tell the federal courts how to organize their calendars and evaluate state court findings could violate separation of powers.
The bill could also face another constitutional problem, some argue: Article I, 9 of the Constitution provides that "the privilege of the writ of habeas corpus shall not be suspended" except in time of rebellion or invasion.
"There will be an argument that these restrictions so much choke off the ability to seek habeas corpus that they violate the suspension clause," said Charles Weisselberg, clinical professor at the University of Southern California Law Center.
But that argument could run into historical problems: The right to habeas review was extended to state prisoners only after the Civil War. And Scheidegger argues that the absolute constitutional right applies only before trial, not after conviction.
The Squeeze Is On
If the law's provisions survive intact, the new squeeze on federal habeas will start with the shortened filing times. Glendale solo practitioner Tracy Dressner, a former death penalty law clerk in the Central District of California, just took on a capital case with an 11,000-page record. Even if she does nothing but read all day long, Dressner said, she won't finish the transcripts for six weeks, a big chunk out of a six-month filing time.
"You haven't talked to your client, haven't done any investigation, haven't started writing," Dressner said. "It's just not practical if you have attorneys who have any other kind of practice."
At least defense lawyers can have the comfort of knowing that judges will face similar pressure.
The Ninth Circuit U.S. Court of Appeals has already begun assessing the bill's likely impact, said Chief Judge Procter Hug Jr., and especially the impact the new time limits will have on pending cases.
Those new limits, which give district judges six months and appeals courts four months to rule on capital habeas petitions, are significantly shorter than current practice.
According to statistics compiled last year for the Federal Judicial Center, between 1988 and 1994 district courts in the Ninth Circuit took an average of 520 days -- more than 17 months -- to dispose of capital habeas cases, and the appellate court took an average of 214 days, or about seven months.
Nationwide, over the past 20 years, executions have taken place an average of eight years after conviction, Dieter said, although it is not clear how much of that time is taken up with federal proceedings.
The new bill specifies that its provisions apply to pending capital cases, and it bars judges from evading the new limits "because of general congestion of the court's calendar."
The upshot is bound to be a big squeeze on already crowded dockets, say judges and lawyers, as Congress shows no signs of allocating more money to add judgeships.
"If we make this our priority and tell the people with important intellectual property cases we'll get around to them when we can, sure, we can do it," said the Northern District's Henderson.
Such a trade-off is inevitable, he said, "unless you assume we're playing golf half the time. We're working our butts off -- and you can quote that."
But the scheduling crunch need not occur if federal judges take seriously the new deference standard, said the Criminal Justice Legal Foundation's Scheidegger. The bill requires federal judges considering habeas petitions to defer to state findings unless those findings are based on "an unreasonable application of clearly established federal law."
"To look over somebody else's decision and say that it's within reason is a much simpler and faster task than redeciding the questions yourself," Scheidegger said.
That's just what worries opponents of the new bill, who note that federal courts currently overturn convictions or sentences in 40 percent of the capital cases they review.
"It's like judicial good faith: If they tried hard enough and they got close, it's good enough," said Lawrence Gibbs of Berkeley's Grossman & Gibbs, who does federal and state habeas work but not capital cases. "What's the point of a constitutional right if the state court can get it wrong and you nonetheless have no remedy?"
Hug, the Ninth Circuit chief judge, also voices concern about the deference standard.
"When we're deciding a question of law by giving deference to someone else's decision of law, you're really not deciding the law," Hug said. "You're deciding how bad the misinterpretation might have been."
But such concerns imply that state courts do a poor job of protecting constitutional rights -- and that's an inaccurate view, say supporters of the new law.
"Very often, the criticism tends to be inflated and perhaps exaggerated based upon examples that are years old," said Gillette, the deputy AG who coordinates capital cases for the state.
In California, Gillette insists, capital cases are tried exhaustively and scrutinized carefully on appeal. Under Chief Justice Malcolm Lucas, the state Supreme Court has rarely overturned capital convictions or sentences -- although the federal courts have overruled them in some cases.
Scheidegger, too, says that the wrongly convicted innocents who populate the arguments of habeas reform opponents are largely fictional. But he acknowledges that an occasional mistake may slip through the cracks.
"Any time you cut back on review, you're going to have a few more wrong decisions," he said. "You're going to have a few more errors in the state's favor and a few less errors in defendants' favor."
That's an argument defense lawyers find hard to take.
"The reason why it is so offensive is that there is not one person in the world who is willing to accept that argument if they're the one person, or their kid is, who pays the price," said Dennis Riordan of San Francisco's Riordan & Rosenthal. "It will be somebody who is black or poor, and it won't be me."
(The Recorder is an affiliate publication of Court TV.)
Copyright 1996, American Lawyer Media.
