American Civil Liberties Union: Don’t Let Congress Allow Innocent People to Be Executed

Senate bill 1088, the Streamlined Procedures Act of 2005, eliminates state prisoners’ ability to access federal courts in order to have their criminal cases reviewed. If passed, it would prevent federal courts from reviewing many types of legal errors in criminal cases.

Since 1976, when capital punishment was resumed in some states, federal habeas corpus has been the principle means by which the federal courts have forced the states to adhere to constitutional standards for the imposition of the death penalty. Those standards are essential if capital punishment is to be administered in a fair and nondiscriminatory manner. Yet death penalty statutes are complex and state courts often fail to interpret them correctly. Thus, in many cases federal habeas proceedings become the court of last resort for state prisoners with claims of innocence.

S.1088 Would Result In Incarcerated Persons Who Have Had Their Constitutional Rights Violated Never Getting Their Day In Federal Court:

This legislation would require state prisoners to litigate their federal claims in state court at the same time as they litigate any state claims regarding their incarceration. It would also require federal courts to dismiss federal claims that are brought to court before the state court process is exhausted.

Federal Courts Would Be Barred From Reviewing Wrongful Convictions Based on Fundamental Constitutional Errors:

Under Section 4 of S.1088, state and federal courts would be prohibited from considering federal constitutional claims regardless of the merit of the case if a state court throws out a claim. This means that federal courts would not be able to grant relief to a prisoner represented by inadequate defense counsel who failed to preserve a legal claim.

Federal Court Would Essentially Be Unable To Release A Person Who Was Given A Sentence Longer Than He or She Deserved:

Section 6 of S.1088 would prevent federal courts from hearing claims in death penalty cases that involve claims of cruel and unusual punishment under the Eighth Amendment or claims that involve the inadequacy of a defendant’s lawyer during the sentencing phase of a capital case.

The Authority To Decide When A State Has A Competent System Of Legal Representation In Death Penalty Cases Would Be Taken Out Of The Hands Of The Courts:

Under this bill federal courts would no longer decide whether a state has established a competent counsel system for indigent persons in capital punishment proceedings. The U.S. Attorney General, the chief prosecuting officer of the United States would be given the authority to determine whether states have competent legal counsel systems. Allowing the chief prosecuting officer of the United States to decide whether state defense indigent defense counsel systems pass constitutional muster is inappropriate and demonstrates a lack of sincere interest in providing adequate representation in post-conviction cases.

S.1088 Would Change The Rules Midstream In Cases That Have Been In The Courts For More Than 10 Years:

This legislation would apply retroactively in some cases, meaning that people who have spent years in the appeals process at the time this bill becomes law could have their cases thrown out of federal court.

If S.1088 is enacted many wrongfully convicted people will never have the opportunity to establish their innocence in a federal court.

Click here to urge your Senator to oppose S. 1088 and preserve constitutional authority of federal courts to give people incarcerated at the state level access to federal court.

Thanks to Tweeny for bringing this injustice to our attention!

Some further reading about this:

NACDL President Barbara Bergman’s Inaugural Remarks – August 2005 where she stated the following:

At the Constitutional Convention, which James Madison attended, and his neighbor, Thomas Jefferson, did not, the Constitution was forged, and it had no Bill of Rights.

And Madison, with some pride of authorship, put the draft constitution on the packet boat and sent it to his old neighbor, Jefferson, who was then in Paris. Jefferson was anticipating its arrival and met every boat, the letters tell us, for about three weeks. Finally he got the document. He sat there and he read it. And, he wrote on the envelope and gave it right back to the next packet courier going to Philadelphia.

He wrote on the envelope, “Madison, why is there no guarantee of civil liberty? This Constitution devotes itself only to public order.”

Madison expected a response, and he walked the docks for a few days himself and finally the message came. He looked at it. He was somewhat disappointed. (And this envelope, by the way, is in the library at Monticello.) He flipped it over, and he wrote on it: “Jefferson, do you not understand of all men, that we must sometimes trade a little liberty for a little order?” That message then went to Paris.

And, the envelope came back by the next boat, and we should be mindful of what Jefferson wrote. He wrote: “My dear Madison, I am appalled that you, my friend, above all men, do not understand that a society that will trade a little liberty for a little order will deserve neither and will lose both.”

We have to continue to remind ourselves of that today.

Much more at the site…including the following about the Streamlined Procedures Act:

Preventing the Conviction and Continued Incarceration of the Innocent

Such training becomes even more important as Congress is now seeking yet again to limit the availability of habeas relief. The proposed Streamlined Procedures Act — now pending in Congress — would effectively eliminate the availability of federal habeas relief for virtually all state prisoners, and we must do everything we can to stop it.

As Barry Scheck said when he testified recently before the Senate Judiciary Committee:

The wrongly convicted ordinarily cannot prove their innocence until they have competent counsel, appropriate experts, access to suppressed exculpatory evidence, and perhaps most important of all, a full and fair hearing on the merits of their procedural due process claims. The reason we care about procedural due process, after all, is that it leads to accurate results. That is exactly why so many innocence cases do not start out presenting innocence claims at all, but rather procedural due process violations, and proof of innocence only emerges once the rubble of other legal errors has been swept aside. So any habeas bill that tries to restrict claims to just those that start off with fully developed showings of innocence will — by making sure that innocence showings don’t emerge from the rubble — bury them.

Yet that is exactly what the sweeping curtailment of federal habeas jurisdiction proposed by S.B. 1088 would do. It would bury the truly innocent under a welter of state and federal procedural bars. It would undermine efforts to raise the low standard of representation of the indigent tolerated by state courts (after all, a competent, adequately funded lawyer is the best protection the wrongly convicted can get). And inevitably, by keeping the innocent in prison and out of court, it will leave the real perpetrators free to commit more crimes.
In an era where DNA testing and other forms of proof demonstrate that more innocents are wrongly convicted than anyone ever suspected, congressional efforts should be focused on lowering the procedural hurdles to proving innocence and speeding up post-conviction processes so that more constitutional claims can be heard on the merits. S. 1088 takes us in precisely the wrong direction, and we must do everything we can to defeat it.
In the last sixteen years, primarily due to the impact of DNA testing, it has become clear that wrongful convictions plague our justice system in far greater numbers than ever imagined. To date there have been 159 post-conviction DNA exonerations in the United States. In forty-five of those cases, the real perpetrator was then apprehended. An additional 196 convicted defendants — almost all in murder cases — were exonerated between 1989 and 2003, without benefit of DNA evidence. There is every reason to believe these exonerations are just the tip of an iceberg. Forensic experts believe less than 20 percent of serious criminal cases contain any biological evidence where DNA testing could be employed to help protect the innocent and identify the guilty.

So what can be done about the other 80 percent of cases where the usual causes of wrongful convictions — ineffective lawyers, suppressed Brady material, prosecutorial or police misconduct, fraudulent and flawed forensic science, mistaken identifications, false confessions, or perjury – are at play?

DNA testing is not a panacea for our justice system, but the DNA exoneration cases have taught us that more must be done to correct the weaknesses in our fact-finding system, to strengthen procedural due process protections, especially effective representation by counsel, not less. That is why the provisions of S. 1088 that severely curtail federal review of ineffective assistance of counsel claims, and those provisions which give the Attorney General, rather than the courts, the power to determine whether or not a state provides competent counsel to death row inmates in state post-conviction proceedings are extremely troubling and why this bill must be defeated.

But not only must we seek the defeat of S. 1088 and its House counterpart, but we must continue to try to prevent wrongful convictions in the first place. The work of Scott Ehlers and the State Legislative Network to enact or implement eyewitness identification reform — procedures that were recommended by Janet Reno’s Department of Justice in its Eyewitness Evidence: A Guide for Law Enforcement – is essential.

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