A vari­ety of legal experts and nation­al orga­ni­za­tions have expressed strong con­cerns about a bill intro­duced in Congress that would great­ly lim­it fed­er­al review of death penal­ty cas­es.

The American Bar Association called for rejec­tion of the leg­is­la­tion:

S. 1088 should not be enact­ed. Its pri­ma­ry effect would be to insure that the fed­er­al courts did not hear com­pelling claims – includ­ing claims of actu­al inno­cence. Any pos­si­ble gain in speed would be off­set by the cer­tain loss of jus­tice. As the ABA has long advo­cat­ed, true reform lies in the direc­tion of elim­i­nat­ing the tech­ni­cal bar­ri­ers whose elab­o­ra­tion now occu­pies so much of the time of the fed­er­al courts deal­ing with habeas cor­pus peti­tions in favor of hav­ing those courts prompt­ly reach the con­sti­tu­tion­al mer­its.
(Statement of Prof. Eric Freedman on behalf of the ABA before the Senate Judiciary Committee, July 13, 2005 (exec­u­tive sum­ma­ry)).

The New York Times edi­to­ri­al­ized about the reper­cus­sions that the bill could have:

Congress is qui­et­ly con­sid­er­ing whether to destroy one of the pil­lars of con­sti­tu­tion­al law: the habeas cor­pus pow­er of the fed­er­al courts to deter­mine whether an indi­gent defen­dant has been unjust­ly sen­tenced to death in state courts.

A bill mak­ing alarm­ing progress in com­mit­tee would effec­tive­ly strip fed­er­al courts of most review pow­er and shift it to the attor­ney gen­er­al. That’s right: the chief pro­s­ec­tuor of the United States would become the judge of whether state courts behave fair­ly enough toward defen­dants appeal­ing cap­i­tal con­vic­tions. If a state sys­tem was cer­ti­fied as up to snuff, then the fed­er­al courts would lose their juris­dic­tion and con­demned defen­dants their last hope.

It is appalling that law­mak­ers would vis­it such destruc­tion on a basic human right that’s been painful­ly secured across three cen­turies of jurispru­dence.
(N.Y. Times Editorial, ​“Court Gutting in Congress,” July 16, 2005).

Prof. Barry C. Scheck of the Cardoza Law School and co-direc­tor of the Innocence Project also tes­ti­fied before the Senate Judiciary Committee regard­ing the bill:

It would bury the tru­ly inno­cent under a wel­ter of state and pro­ce­dur­al bars. It would under­mine efforts to raise the low stan­dard of rep­re­sen­ta­tion of the indi­gent tol­er­at­ed by state courts. And inevitably, by keep­ing the inno­cent in prison and out of court, it will leave the real per­pe­tra­tors free to com­mit more crime.
(Testimony of Prof. Barry Scheck, Senate Judiciary Committee, July 13, 2005).
See also Representation.

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