Habeas Corpus - "the only writ named in the Constitution" - under attack in Congress

Talk about a return to the Middle Ages. While the Senate openly removes habeas protections for anyone designated an "enemy combatant," the backdoor assault on the Great Writ that began with the 1996 "Anti-terrorism and Effective Death Penalty Act" (AEDPA) continues apace, with Arizona's John Kyl (who aspires to the Senate judiciary chair) again leading the charge. This isn't likely to be spelled out in the pages of the NY Times.

from the Justice Project:

Habeas Under Attack Again

Last week, criminal justice advocates mobilized against a potentially devastating blow to habeas corpus rights. Despite widespread opposition to the Streamlined Procedures Act and other legislation that would effectively repeal the "Great Writ" of habeas corpus, members of the House and Senate Judiciary committees worked behind closed doors last week to attach such measures to a Department of Defense (DOD) Authorization Bill.

Some 300 pages of non-germane language, including habeas repeal measures, could be tacked on to the DOD bill -- the primary purpose of which is to provide resources for troops in Afghanistan and Iraq. Much of this maneuvering has been taking place though back door channels, and regular order, which assures that both chambers of Congress have a fair opportunity to consider the legislation, has been skirted. Alarmingly, the texts of some of the measures have not been seen by many members and their staff nor by the public. This method of passing unpopular measures has, unfortunately, worked in the past. Last year, during eleventh hour Patriot Act reauthorization discussions, Sen. Jon Kyl (R-Arizona) inserted two provisions that significantly limit the ability of the Great Writ to enforce important Bill of Rights protections.

In recent years, thanks in part to the work of The Justice Project and our supporters and allies, Congress overwhelmingly supported the passage of the bipartisan Innocence Protection Act to correct some of the problems in the criminal justice system that lead to wrongful convictions. The habeas repeal provisions worked on this week would undercut much of that progress and increase the risk that innocent people will remain in prison or even be executed.

Habeas repeal provisions have been opposed (pdf) by the Conference of Chief Justices, which includes the highest judicial officers from each of the fifty states and all US territories, the Judicial Conference of the United States (the principal policymaking body with regard to the US Courts), over thirty former judges, and more than sixty former prosecutors from across the political spectrum, because there is no evidence that this legislation is needed.

The Justice Project and our allies remain on the offensive; habeas repeal language could easily be attached to a number of pieces of legislation in these final few days before Congress recesses for the midterm elections or in a potential lame duck session later this fall. Residents of the following states can contact their Congressional representatives (who hold leadership positions or sit on committees considering these measures) through our website and encourage them to oppose changes that limit our habeas protections: CA, DE, MA, MI, PA, TN, WI and VA. Also, some districts in IL, OH and NC.

Habeas Repeal Measures Increase Threat of Wrongful Convictions

Although there is widespread opposition to the Streamlined Procedures Act and other legislation that would effectively repeal the "Great Writ" of habeas corpus, members of the House and Senate Judiciary committees continue to work behind closed doors to pass these reforms. Efforts are currently afoot to attach widely criticized habeas measures and 300 pages of other non-germane matters to a Department of Defense Authorization bill that is presently in conference and will be finalized in the coming days. This closed-door strategy is nothing new: in the past, Congress permitted widely opposed habeas legislation to bypass normal review. During eleventh hour Patriot Act reauthorization discussions, Sen. Jon Kyl (R-Arizona) inserted two provisions that significantly limit the ability of the Great Writ to enforce important Bill of Rights protections.

Now, the DOD Authorization bill -- the purpose of which is to provide resources for forces in Afghanistan and Iraq -- is being weighed down and slowed by controversial and wrong-headed crime legislation that has otherwise been unable to garner majority support in both houses of Congress. Members of both parties who have fought on principle to resist these regressive changes to habeas should continue to do so and not be made to appear anti-patriotic when they rightfully object to this unnecessarily bloated DOD bill.

Regular order -- which assures that both Chambers of Congress have a fair opportunity to consider the legislation -- has been skirted; indeed, the texts of some of the added measures has not been seen by many members and their staff nor by the public -- there is only one proper course of action -- remove the non-germane matters from the bill.

In recent years, Congress overwhelmingly supported the passage of the bipartisan Innocence Protection Act to correct some of the problems in the criminal justice system that led to wrongful convictions. The habeas repeal provisions would undercut much of that progress, and increase the risk that innocent people will remain in prison or even be executed.

On June 12, 2006, the United States Supreme Court’s 5-3 decision in House v. Bell reaffirmed how critically important it is that access to habeas corpus remain available to state prisoners in this country. Indeed, if habeas "reforms" that have been introduced in Congress were the law, Mr. House almost certainly would have been out of court without anyone considering the merits of his arguments. Errors routinely occur during the trial phase and state courts often fall short in their responsibility to correct these errors; by cutting federal courts out of the review process, as Congress is attempting to do, these errors will go uncorrected, increasing the likelihood that innocent people will languish in prison, or even be executed.

The Streamlined Procedures Act and the habeas provisions found in the Patriot Act and other drastic habeas repeal measures are opposed by a broad array of groups and individuals including the Conference of Chief Justices, the Judicial Conference of the United States, more than 60 former prosecutors, 30 current and former judges, and a number of leading conservatives. In the past months, the U.S. Conference of State Chief Justices passed a resolution opposing the legislation and urging that additional study and analysis of current laws governing habeas corpus petitions be undertaken. In September, the Judicial Conference of the United States -- an entity created by Congress in 1922 to "serve as the principal policy making body concerned with the administration of the United States Courts" -- similarly urged further study before any changes are made to the writ of habeas corpus.

The Streamlined Procedures Act:

Is opposed by a broad array of groups and individuals, including the Conference of Chief Justices, the Judicial Conference of the United States, more than 60 former prosecutors, 30 current and former judges, and a number of leading conservatives. In the past months, the US Conference of State Chief Justices passed a resolution opposing the legislation introduced by Sen. Jon Kyl (R-AZ) and Rep. Dan Lungren (R-CA) and urging that additional study and analysis of current laws governing habeas corpus petitions be undertaken. In September, the Judicial Conference of the United States -- an entity created by Congress in 1922 to "serve as the principal policy making body concerned with the administration of the United States Courts" -- similarly urged further study before any further changes to habeas are made.

Would generate numerous complicated legal issues and years of litigation and delay. Contrary to the title of the legislation, the Streamlined Procedures Act would generate years of delay in the resolution of prisoner appeals because it would overturn a series of Supreme Court decisions, disregard long-established principles of federalism, and invite constitutional challenges on the theory that it impairs the independence of the federal courts. In 1996, Congress amended the habeas corpus statute by enacting the Anti-Terrorism and Effective Death Penalty Act (AEDPA). The AEDPA contained numerous provisions that have required years of review by the Supreme Court and the lower federal courts to authoritatively interpret. If passed, the Streamlined Procedures Act would pose similar problems for the courts.

Would lead to more errors and unfairness in the justice system. The current system of indigent defense in the United States -- in which defenders are chronically underfunded and have far too many clients -- often fails to guarantee defendants a fair trial and state courts fall short in their responsibility to correct the errors that occur during the trial phase. By cutting federal courts out of the review process, these errors will go uncorrected, calling into question the integrity of the criminal justice system. Additionally, while finality is important to the victims of crime and to the public in general, no one wants an innocent person to be convicted of a crime, especially when the punishment is death, and when it may well mean that the real perpetrator remains free to commit more crimes.

Would increase the likelihood that an innocent person will be executed. The rising number of innocent prisoners being freed from jails around the US in recent years has revealed serious flaws in our criminal justice system. Congress has worked to correct some of these problems with last year's enactment of the Innocence Protection Act, but the Streamlined Procedures Act would undercut much of that progress. When an innocent person is convicted of a crime it is most often because the defendant received ineffective assistance of counsel or an act of police or prosecutorial misconduct occurred in the case. Innocent prisoners need to be able to challenge their cases by filing habeas corpus petitions that can then clear the way for them to prove their innocence.

Despite this widespread opposition, habeas repeal measures are being attached to other bills making their way through Congress, including the Patriot Act and the Omnibus Crime Bill. You can help by taking action today!

Status of the Legislation in the Senate:

The Senate Judiciary Committee held its second hearing on the bill on Wednesday, November 16th. A hearing on the legislation took place on July 13 featuring witnesses including former US Solicitor General Seth Waxman, innocence expert Barry Scheck and death penalty attorney and law professor Bryan A. Stevenson arguing that the bill would increase the likelihood of innocent people being executed. The witnesses also noted how the legislation undermines recent bipartisan action by Congress to address inaccuracy in the criminal justice system, through the Innocence Protection Act, and conflicts with the Anti-Terrorism and Effective Death Penalty Act.

Committee Chairman Arlen Specter, R-Pa. has amended the legislation twice addressing some of the concerns about the original bill; however, the amended version remains a serious threat to fairness and accuracy in the criminal justice system.

Status of the Legislation in the House:

The House Judiciary Subcommittee on Crime, Terrorism and Homeland Security held its second hearing on the House version of the bill, HR 3035, on Thursday, November 10th. At the hearing, Washington, DC attorney Ruth E. Friedman, a former senior counsel at the Equal Justice Initiative, commented that the legislation was written based largely on anecdotal information about cases in the 9th Circuit Court of Appeals. Friedman noted, "Unlike any prior reform or revision, this legislation would strip the federal judiciary of jurisdiction to consider claims of serious constitutional error arising from state court convictions. In so doing, it would dismantle years of Supreme Court jurisprudence and wreak havoc on the administration of criminal justice. HR 3035 would deal this crippling blow to habeas corpus without any evidence of a need for such extreme measures." Read Friedman's full testimony (pdf).

Legislation Summary:

Section-By-Section--
Full Text of S 1088, including Sen. Specter's substitute language
Full Text of HR 3035

Lives at Stake:

Here is a sampling of the innocent people who might have been executed or left to languish in prison if the Streamlined Procedures Act were law while their cases were under review.

Here are more examples of cases involving egregious prosecutorial misconduct and other injustices that the Streamlined Procedures Act would leave untouched.

Opposing the Streamlined Procedures Act:

View a list of organizations and individuals opposing the legislation.

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In the Federalist Papers No. 84 by Hamilton, we find the following statement of the Founders' original intent: "The most considerable of the remaining objections [to the 1787 Constitution] is that the plan of the convention contains no bill of rights." Hamilton then gives an answer to these objections. He says that the structure of the government itself providing only for enumerated powers and for checks and balances is one of the answers to these objections. Beyond that, he answers the objections as follows:

Independent of those [answers] which relate to the structure of the government, we find the following: . . . . Section 9 [Article I] clause 2 - "The privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it . . . ." [T]he practice of arbitrary imprisonments, have been, in all ages, the favorite and most formidable instrument of tyranny. The observations of the judicious Blackstone, in reference to the latter, are well worthy of recital: . . . "confinement of the person, by secretly hurrying him to jail, where his sufferings are unknown or forgotten, is a less public, a less striking, and, therefore a more dangerous engine of arbitrary government." And as a remedy for this fatal evil he [Blackstone] is everywhere peculiarly emphatical in his encomiums on the act, which in one place he calls "the Bulwark of the British Constitution."

The writ of habeas corpus is the only writ named in the Constitution. So great was its importance for the preservation of liberty that the members of the Constitutional Convention equated it, along with the structural provisions, with a Bill of Rights. Had not some state ratification conventions insisted on a Bill of Rights, the federal courts would have had to create an unwritten Bill of Rights using the writ of habeas corpus and the doctrine that the elected branches are limited to the enumerate powers named in the Constitution. Because of the importance of the clause forbidding the suspension of the writ, the Supreme Court has refused to allow Congress, the executive or the lower courts seriously to reduce its coverage and protections. For example, in INS v. St. Cyr, 533 U.S. 289, 300 (2001), the Supreme Court refused to adhere to an interpretation of an immigration statute and AEDPA that "would give rise to substantial constitutional questions" under the Suspension Clause. (dissent by Circuit Judge MERRITT, Davis v. Straub [pdf])

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[update] from an email:

on incumbent Arizona Republican Senator John Kyl:

" . . . We know first-hand of his tireless efforts to greatly limit federal corpus remedies. In the mid-1990's, he vigorously sought to preclude any meaningful review of constitutional claims brought in habeas corpus proceedings. Current Chairman Arlen Specter, supported by Judiciary Committees Democrats, stopped those efforts. In the spring of 2005, Senator Kyl quietly introduced the ill-named Streamline Procedures Act, a bill that would virtually repeal habeas corpus review except for those who rarely need it -- those who are demonstrably factually innocent. This bill was forcefully opposed by a broad and deep coalition that spanned the political spectrum: the Federal Judicial Conference, all 50 state supreme court Chief Justices, the ABA, numerous former judges and prosecutors, some conservatives, and many moderate and liberal organizations. This opposition stopped SPA in the Senate Judiciary Committee late last year.

"But true to form, Senator Kyl did not give up. He sought instead to attach SPA provisions to legislation that would pass, and present no opportunity for debate. At the eleventh hour during Patriot Act reauthorization negotiations last December, he succeeded in placing two highly controversial SPA provisions into the reauthorization conference report. They have since become law. Also late last year, he drafted and played a key role in passage of the Detainee Treatment Act, a bill that removed much of the federal judiciary's habeas corpus jurisdiction for those detained at Guantanamo Bay. And he continues to place other controversial SPA provisions in legislation that likely will pass. Habeas corpus and other important constitutional safeguards will not be safe as long as he remains in the Senate.

"If Kyl is reelected, and the Republicans keep Senate control, he will become the Chair of the Judiciary Committee in 2009, or earlier if the Republican Conference decides to oust its current chair, Senator Specter. As chair, Senator Kyl would have the power to ensure that SPA and other extreme measures that limit the power of the federal judiciary to enforce constitutional rights become law of the land."