A new study by law pro­fes­sors Eric Freedman of Hofstra and David Dow of the University of Houston found that, before the pas­sage of the Anti-Terrorism and Effective Death Penalty Act in1996, death row inmates who filed habeas cor­pus peti­tions in fed­er­al court suc­ceed­ed in over­turn­ing their con­vic­tions or death sen­tences about 40% of the time. After pas­sage of the 1996 law which restrict­ed the Courts’ pow­er to over­turn state deci­sions, the num­ber of suc­cess­ful appeals fell to just 12% between 2000 and 2006, and the rate of suc­cess­ful appeals con­tin­ues to decline today.

​“Federal courts now grant relief at a very small rate — far small­er than they would if they had the pow­er to cor­rect sig­nif­i­cant con­sti­tu­tion­al vio­la­tions,” said Dow. ​“But Congress has already deprived fed­er­al courts of their pow­er to grant relief in most cas­es, even where the court believes that a sig­nif­i­cant error has occurred.” Reacting to a new law which could result in much short­er peri­ods of review for death penal­ty cas­es, he added, ​“The notion that the fed­er­al gov­ern­ment wants to accel­er­ate exe­cu­tions in the face of known mis­takes, and wants to do so just as DNA is becom­ing avail­able in more and more cas­es, is mind-bog­gling. It will increase the risk that some state exe­cutes a per­son we lat­er find to be inno­cent.”

The new­ly pro­posed Justice Department reg­u­la­tions stem from pas­sage of the Patriot Act, leg­is­la­tion that gives the Attorney General new pow­er to approve requests from states seek­ing manda­to­ry dead­lines for cap­i­tal defen­dants who wish to appeal their cas­es to fed­er­al courts. The law requires that the Attorney General decide whether a state has a sys­tem in place to pro­vide ade­quate rep­re­sen­ta­tion for those fac­ing the death penal­ty, and if so, lit­i­ga­tion in cap­i­tal cas­es from those states will be ​“fast tracked.”

Freedman voiced fur­ther con­cerns about the pro­posed reg­u­la­tion change, observ­ing, ​“After the courts had repeat­ed­ly found that the states were not pro­vid­ing com­pe­tent defense rep­re­sen­ta­tion in cap­i­tal cas­es, Congress decid­ed to solve the prob­lem by the sim­ple device of hav­ing the attor­ney gen­er­al announce that it did not exist. The attor­ney gen­er­al can cer­ti­fy that the moon is made of green cheese, but that will nei­ther make it so nor advance sci­en­tif­ic knowl­edge. The way to fix cap­i­tal defense sys­tems is not to deny that they need fix­ing, but rather to ded­i­cate the need­ed resources to improv­ing them.”

The study by Dow and Freedman is to be pub­lished next year by the Carolina Academic Press.
(New York Times, August 20, 2007). See Arbitrariness and Representation.

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