Kill Bill

Thursday, September 29, 2005

TODAY, THE SENATE Judiciary Committee takes up the so-called Streamlined Procedures Act, a bill that radically scales back federal review of state convictions and death sentences. Calling what this bill does "streamlining" is a little like calling a scalping a haircut. A better name would have been the Eliminating Essential Legal Protections Act. What it does, in effect, is curtail the federal role in policing constitutional violations in state criminal justice systems using the venerable mechanism of habeas corpus. Judiciary Committee Chairman Arlen Specter (R-Pa.) has moderated some of the worst provisions, but this bill is beyond rehabilitation. If it passes, the chances that innocent people will be executed will go way up.

Even after Mr. Specter's efforts, the bill creates onerous procedural hurdles for convicts. It tries to speed up habeas corpus proceedings by making it easier for convicts to lose their right to appeal to federal courts. For example, if a convict fails to raise an argument in state court, federal courts will have no jurisdiction over the claim even if there was a good reason for the failure. If he filed a claim in federal court before going to state court, that claim would be thrown out and lost forever. Supposed exceptions for cases of actual innocence are so narrow as to be useless. And the bill would allow states to race petitions through the courts if they can convince the attorney general that they have an adequate system for providing lawyers in post-conviction proceedings.

Why the radical change? We see no reason. Nor does the Judicial Conference, the administrative arm of the federal judiciary. Like a national organization of state-court chief jus-

tices, which came out against the bill this summer, the Judicial Conference made clear that it "does not believe" in "the need for a comprehensive overhaul of federal habeas jurisprudence." Indeed, if anything, federal rules are too strict. Around the country, concerns about potentially irreversible miscarriages of justice have led state legislatures to take a hard look at their death penalty systems. Congress itself passed important legislation not too long ago to encourage states to improve the quality of lawyers they provide capital defendants. This bill would more than undo that progress.

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