A bill pro­posed by Rep. Daniel Lungren of California and Sen. Jon Kyl of Arizona would strip the fed­er­al courts of much of their pow­er to decide whether death row inmates have been giv­en a fair tri­al and could result in the exe­cu­tion of inno­cent defen­dants. The bill is enti­tled the Streamlined Procedures Act of 2005. The Washington Post edi­to­ri­al­ized about the measure:

Stop This Bill
Sunday, July 10, 2005; Page B06

CONGRESS HAS a nov­el response to the rash of pris­on­ers over the past few years who have been exon­er­at­ed of cap­i­tal crimes after being tried and con­vict­ed: Keep sim­i­lar cas­es out of court. Both cham­bers of the nation­al leg­is­la­ture are qui­et­ly mov­ing a par­tic­u­lar­ly ugly piece of leg­is­la­tion designed to gut the legal means by which pris­on­ers prove their innocence.

Habeas cor­pus is the age-old legal process by which fed­er­al courts review the legal­i­ty of deten­tions. In the mod­ern era, it has been the piv­otal vehi­cle through which those on death row or serv­ing long sen­tences in prison can chal­lenge their state-court con­vic­tions. Congress in 1996 rolled back habeas review con­sid­er­ably; fed­er­al courts have sim­i­lar­ly shown greater def­er­ence — often too much def­er­ence — to flawed state pro­ceed­ings. But the so-called Streamlined Procedures Act of 2005 takes the evis­cer­a­tion of habeas review, par­tic­u­lar­ly in cap­i­tal cas­es, to a whole new lev­el. It should not become law.

For a great many cap­i­tal cas­es, the bill would elim­i­nate fed­er­al review entire­ly. Federal courts would be unable to review almost all cap­i­tal con­vic­tions from states cer­ti­fied by the Justice Department as pro­vid­ing com­pe­tent coun­sel to con­victs to chal­lenge their con­vic­tions under state pro­ce­dures. Although the bill, ver­sions of which dif­fer slight­ly between the cham­bers, pro­vides a pur­port­ed excep­tion for cas­es in which new evi­dence com­plete­ly under­mines a con­vic­tion, this is drawn so nar­row­ly that it is like­ly to be use­less — even in iden­ti­fy­ing cas­es of actual innocence.

It gets worse. The bill, pushed by Rep. Daniel E. Lungren (R‑Calif.) in the House and Jon Kyl (R‑Ariz.) in the Senate, would impose oner­ous new pro­ce­dur­al hur­dles on inmates seek­ing fed­er­al review — those, that is, whom it does­n’t bar from court alto­geth­er. It would bar the courts from con­sid­er­ing key issues raised by those cas­es and insu­late most cap­i­tal sen­tenc­ing from fed­er­al scruti­ny. It also would dic­tate arbi­trary timeta­bles for fed­er­al appeals courts to resolve habeas cas­es. This would be a dra­mat­ic change in fed­er­al law — and entire­ly for the worse.

The leg­is­la­tion would be sim­ply laugh­able, except that it has alarm­ing momen­tum. A House sub­com­mit­tee held a hear­ing recent­ly, and the Senate Judiciary Committee is sched­uled to hold one and then mark up the bill this week. Both Judiciary Committee chair­men sure­ly know bet­ter. House Judiciary Chairman F. James Sensenbrenner Jr. (R‑Wis.), after all, has fought for bet­ter fund­ing and train­ing for cap­i­tal defense lawyers. And Senate Judiciary Chairman Arlen Specter (R‑Pa.) has long opposed efforts to strip fed­er­al courts of juris­dic­tion over crit­i­cal sub­jects. Neither has yet tak­en a pub­lic posi­tion on the bill. Each needs to take a care­ful look. It is no exag­ger­a­tion to say that if this bill becomes law, it will con­sign inno­cent peo­ple to long-term incar­cer­a­tion or death.

(Washington Post, July 10, 2005, editorial).

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