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Race and Death Penalty Links Run Deep and Wide(Also posted on Daily Kos.) Last week, South Carolina pardoned two great-uncles of radio personality Tom Joyner, both executed in 1913 for a murder they did not commit. The two African-American men had been falsely accused and wrongfully convicted of killing a white Confederate Army veteran. Historical records demonstrate that the authorities probably declined to prosecute the most likely suspects to avoid revealing that the victim was having an affair with a young black woman in the community. This was 1913. This was South Carolina. But even with a black president governing in a purportedly post-racial world, race still plays a major role across the country in who lives, who dies and even who gets charged with a capital crime. In the United States, each death-penalty state, as well as the federal government, has its own capital-sentencing statute and procedure. But what proves consistent throughout these various systems is the insidious influence of race on the decisions about who lives and who dies. Race looms large north and south, in the past and now, and whether the accused is innocent or guilty. Nationally, studies consistently demonstrate that, everything else being equal, a defendant is approximately four times more likely to get the death penalty for killing a white person than for a black person. The racial configuration by far the more likely to result in a death sentence is a black defendant and a white victim. Studies of jurors from across various death penalty states demonstrate that in "black on white" murder cases with six or more white male jurors, juries issue a death sentence 78.3 percent of the time. But if three or more jurors were black males, the overproduction of death sentences disappears. Under Connecticut's capital sentencing statute, black defendants have received death sentences at three times the rate of white defendants in cases with white victims. From 1995 to 2001 in New York (which has since abolished the death penalty) the state sought the death penalty twice as often when the victim was white as when the victim was black Historically, New York's numbers mock the principle of equal justice under the law: From 1890 to 1963 (when New York last performed an execution), 90.4 percent of executions were for the killing a white person, and 80 percent of those executed were black. Under modern federal death penalty statutes as well, a majority of those sentenced to death have been people of color, a majority of those receiving a life plea have been white, and the government has sought the death penalty at an increased rate when the victim was white. (See the ACLU's 2007 report, The Persistent Problem of Racial Disparities in the Federal Death Penalty.) The evidence of race's role takes definitive shape in individual cases also. For example, an Ohio case shows that the life of a black person has less value than that of a white person when deciding if a crime is capital. Gregory McKnight, a black man, was convicted of the separate murders of a young white woman and a young black man. Based on an extraordinarily tenuous theory that could have applied to either murder, the State charged McKnight with the aggravated kidnapping murder of the young white woman (but not of the young black man), and thereby obtained a death sentence During the last two years, three men, including ACLU client Levon "Bo" Jones have been exonerated from North Carolina's death row: All three were falsely convicted of killing white victims. Jones was convicted and sentenced to death by an all white jury. In a Texas case, a federal appeals court ruled that the State must grant a new trial to a Latino defendant who was sentenced to death based upon "expert" testimony that Latinos pose a greater threat of future dangerousness than whites. As Justice Anthony Kennedy recognized in a recent Supreme Court case regarding school integration, race still matters in American society. Regrettably, race will likely still matter a century from now. The only surefire way to avoid further fatal mistakes like these, and to eradicate the role of race in the death penalty, is to abolish the death penalty itself.
North Carolina Moves Against Executions Based on Race"Ain't it a great day in North Carolina!" North Carolina General Assembly Representative Larry Womble celebrated with these words this morning, moments before North Carolina Governor Beverly Perdue signed into law a bill Rep. Womble championed entitled the "Racial Justice Act". The bill will allow criminal defendants facing the death penalty to introduce statistics as evidence of impermissible racial discrimination in their capital sentencing proceedings. North Carolina joins only Kentucky in passing legislation that says, as a matter of state law, proof of systemic racial discrimination in capital sentencing decisions may be introduced in challenges to a death sentence or capital prosecution. North Carolina's progress in developing its own law to fight racial discrimination in capital sentencing is significant because the Supreme Court, in a 5-4 decision called McCleskey v. Kemp, ruled 22 years ago that statistical evidence of systemic racial bias may not be used to challenge a death sentence under federal constitutional law: such a challenge requires, instead, proof of that the individual decision makers in a particular case acted with racially discriminatory purpose. The Supreme Court's decision in McCleskey was startling. The court's ruling effectively condoned substantial racial disparities in Georgia's use of the death penalty, proven by sophisticated statistical analyses which the court accepted as true. These statistics showed that, after controlling for nonracial factors, a person convicted of killing a white person was 11 times more likely to receive the death penalty than a person who killed a black person, and that convicted killers of white victims faced odds of being sentenced to death that were 4.3 times higher than the odds faced by convicted killers of African-American victims. (When later asked by a biographer if he could change his vote on any decision, the author of this opinion, Justice Lewis Powell, replied: "Yes. McCleskey."). Although we are living in what some commentators call a post-racial society since the election of President Obama, we have yet to heed Martin Luther King Jr's admonishment to judge people by their character and not the color of their skin. Regrettably, the racial discrimination shown in McCleskey continues to play a substantial role in the decision of whom states choose to execute. In North Carolina alone, three African-American men in the last two years have been exonerated from death row after being false convicted of murders involving white victims. That list includes Levon "Bo" Jones, who served 16 years on death row for a murder against a white man that he did not commit. Jones was represented by the Capital Punishment Project. Similarly, the findings the Court considered in McCleskey are not limited to Georgia 20 or more years ago. A study done at University of North Carolina -Chapel Hill several years ago found that a defendant's odds of getting the death penalty in North Carolina increased by 3.5 times if the victim is white. Passage of the Racial Justice Act constituted an enormous victory for civil rights activists, concerned religious leaders, and other advocates. The victory took years of organizing and hard work, against a determined opposition. And passage was particularly gratifying for the Capital Punishment Project and ACLU of North Carolina. The legislators and advocates who spoke at the bill-signing ceremony today acknowledged Sarah Preston, the ACLU of North Carolina's legislative counsel for her hard work on the bill. They also recognized our client, Bo Jones, for the part he played in drawing attention to this issue. Finally, the chief advocate for this bill statewide was the Reverend William J. Barber, II., the President of the North Carolina NAACP, whom the ACLU of North Carolina honored this past November with its Paul Green Award for Efforts to Abolish the Death Penalty. Yes, indeed, a great day in North Carolina.
The Empty Promise of Appointed Clemency Counsel in TexasDespite a recent Untied States Supreme Court decision protecting the rights of indigent death-row inmates seeking executive clemency, Texas has continued to execute people without pausing to give effect to the high court's ruling. As a result, Texas has executed two men — Michael Rosales and Derrick Johnson — who had made strong factual showings of mental retardation but were either not afforded a lawyer or were not allowed a full hearing on their claims. On April 1, 2009, April Fool's Day, the United States Supreme Court issued its opinion in Harbison v. Bell (PDF), deciding that federal law entitles indigent state death-row prisoners access to clemency counsel — a lawyer appointed by a federal district court to represent prisoners during executive clemency proceedings. The Supreme Court observed that clemency is the last "fail safe" where the judicial process has failed to prevent a "miscarriage of justice." The "fail safe" of clemency in Texas is of critical importance given that the appeals of death-row inmates too often are dismissed based on procedural problems — a defense lawyer filing an appeal late, for example — that are outside prisoners' control. Harbison overruled various lower federal court decisions, including a 2002 decision that denied the right to appointed clemency counsel to Texas death-row inmates. Since 2002, Texas has executed 180 people denied the right the right to counsel the Harbison decision found was mandated by federal law. What's worse, Rosales and Johnson were executed after the Harbison decision, but without being afforded the protections the decision requires. On April 15, 2009, two weeks after the Harbison decision, Texas executed Rosales. His application for an appointed clemency counsel was denied in the federal courts because Texas law requires clemency petitions to be filed at least 21 days before the date of execution. Even though the Harbison decision was delivered less than a week after the clemency petition deadline had passed, the federal courts asserted that he had no "available" clemency proceeding. Completing the Catch-22, Texas would not postpone Mr. Rosales's execution date. Had Rosales been appointed clemency counsel and reasonable time to file a petition, he would have had a substantial clemency claim to bring before the Texas Board of Pardons and Parole, given that he was very likely mentally retarded, and the U.S. Supreme Court found execution of the mentally ill unconstitutional in Atkins v. Virginia. Had Rosales been granted a clemency hearing, the Texas Board of Pardons and Parole and the governor could have considered evidence of mental retardation developed by clemency counsel as a basis for sparing Mr. Rosales's life. So despite the Supreme Court's ruling in Harbison, the "fail safe" of clemency utterly failed Rosales: he was executed without clemency counsel having been appointed to him, and without a clemency petition ever having been filed on his behalf. The "fail safe" also failed 15 days later, when Texas executed Johnson. His clemency attorney was appointed on April 7, 2009, and he immediately retained a psychologist to evaluate Mr. Johnson. In the meantime, Johnson's lawyer embarked on the highly fact-intensive investigation needed to ascertain whether Mr. Johnson was mentally retarded before the age of 18 and exhibited deficits in adaptive behavior, as required under the legal definition of mental retardation. The psychologist issued his report on April 27, 2009, finding that Mr. Johnson tested in the mentally retarded range. On April 28, 2009, his attorney submitted the psychologist's findings to the Texas Board of Pardons and Parole, but his extremely time-consuming investigation of Mr. Johnson's life before the age of 18 was far from complete. One and one-half hours later, the Board of Pardons and Parole denied Mr. Johnson relief. Mr. Johnson's pleas in the courts for a stay of execution — so that his clemency counsel could complete his work — were denied. Texas legislators objected to the rush to execute Mr. Johnson. So too did the ACLU of Texas. To no avail. Texas executed Mr. Johnson at 6:23 pm on April 30, 2009. On May 19, 2009, Texas is scheduled to execute Michael Riley. His newly-appointed clemency counsel has asked Governor Rick Perry for a 120-day reprieve so that counsel has time to prepare a thorough clemency petition. Harbison will prove to be an awful April Fool's Day prank on Texas death row inmates if the "fail safe" of clemency keeps failing.
Veteran Federal Judge Says Death Penalty Still Arbitrary and Too CostlyReflecting on his 30 years as judge hearing death penalty cases on the U.S., Judge Boyce M. Martin, Jr. of the Court of Appeals for the 6th Circuit wrote in an opinion released today (PDF) that capital punishment in this country remains "arbitrary, biased, and so fundamentally flawed at its very core that it is beyond repair." Judge Martin went on to state: "The system's deep flaws and high costs raise a simple but important question: is the death penalty worth what it costs us?" Citing empirical studies concerning the costs of the death penalty, Judge Martin then persuasively demonstrates that the costs of continuing to prop up this broken system are enormous and unsustainable. His opinion is a concurrence in the Wiles v. Bagley case.
Executing Failure(Originally posted on Daily Kos.) Last night, I saw a grown man cry like a baby. He was kin to Kenneth Wayne Morris, executed by the State of Texas yesterday on his 38th birthday. I was on my way from a capital hearing near Dallas to Texas's death row in Livingston to visit clients. On my way I stopped in Huntsville, where Texas conducts its executions. I had two thoughts when I saw Morris's relative, crying in grief while standing among a crowd of people protesting Morris's death outside the walls of the Huntsville unit, the prison that contains Texas' death chamber. My first thought was of a story renowned death-penalty lawyer Bryan Stevenson often tells, and my second was of a recent Pew Study concerning prison spending. I have often heard Stevenson tell about the kind treatment experienced by a client on the day leading up to his execution. In sum, every hour or so, a guard or warden approached the client asking if he needed something: "What would you like for your breakfast today? What would you like for your lunch, dinner, dessert? Would you like to speak with the chaplain? Would you like a telephone call home? Would you like a room where you can meet in private with your family?" In the hour before his execution, the client remarked: "Mr. Stevenson, today people have offered to meet my every need. That has never happened to me before. No one asked if I needed anything when my father beat me as a child. No one asked if I needed anything when my family lost its home. No one asked if I needed anything something when my school placed me and other poor African-Americans in special education, even if we could have succeeded in regular classes with a little help. No one asked if I needed anything when I started to run with a gang because it was the only place I could find safety, protection, and acceptance. No one asked if I needed anything when my time in state prison taught me more violence, rather than a skill I could use when I got out."As I stood outside the prison last night, I wondered not about how Morris, who is also African-American, was treated on the day of his execution, but about what happened in the years leading up to his capital crime. Stevenson's story is a familiar one to capital defense attorneys: we see the government pouring extraordinary resources into obtaining and carrying out death sentences after doing next to nothing to help our clients before they become occupants of death row. Not enough is done when they could have been helped or rehabilitated. A study published by the Pew Center on the States helps to explain the lack of adequate help for our clients earlier in their lives. The study found that the growth in state prison spending, which has quadrupled in the last two decades, outpaces state budget growth in every area except Medicaid - including education, transportation, and public assistance. The study also found that one in 11, or 9.2 percent, of African-Americans are under state correctional control, compared with one in 45 whites, or 2.2 percent. Thus, money that could be used to help disadvantaged African-Americans in need is spent to imprison them. Notably, Morris spent time in state prison before his capital crime. Ideally, society should encourage and help its people to realize their full God-given potential. At a minimum, it should help youngsters and their families when doing so could prevent them from turning to crime. When society fails in this regard, it simultaneously falls victim to crime and puts one of its own behind bars at state expense. And while prisons do have an appropriate role in incapacitating dangerous criminals, they are equally a place where, all too often, inmates who could be rehabilitated learn, instead, more violence and how to be a better criminal. Because we fail so dramatically to devote resources to help young people in desperate need, we often end up paying far more later on. We know Morris had the potential for rehabilitation and redemption: he issued a sincere apology to the victim's family in his final statement. His capital murder and the execution represent yet another failure of society to help someone who could have been helped as a youth, or rehabilitated in prison.
Texas's Failed Clemency ProcessYesterday evening at 6:18 p.m. CST, the State of Texas executed a man who posed no danger to society; a man who was universally understood to have undergone complete transformation and rehabilitation since his 1993 conviction for burglary and murder. Willie Earl Pondexter, executed two days shy of his 35th birthday, was a changed man. Undisputedly, Texas did not execute the same violent, young person who committed his crime over 15 years ago. In the words of a corrections officer who had come to know Pondexter during his incarceration, he "could safely live out his days in a structured environment." The officer stated, "You would be hard-pressed to find anyone to say something bad about Pondexter." Texas justifies its death sentences on a jury's finding that a convicted capital murderer will constitute a threat of future danger if not executed. In 1976, in Jurek v. Texas, the Supreme Court approved this sentencing scheme, stating that a jury's determination of future dangerousness is no "different from the task performed countless times each day throughout the American system of criminal justice." The Court cited bail as but one example. But while a wrong bail decision can later be modified if turns out a defendant is not a flight risk or risk to the public, there is no solution when it turns out a jury's determination of future dangerousness — and resulting death sentence — has proven wrong. Texas law provides no formal mechanism for revisiting a jury's determination of future dangerousness — something that could well spare a condemned person who, like Pondexter, turns out not to be violent. That leaves the state's executive clemency process, the procedure the U.S. Supreme Court in Herrera v. Collins, called our criminal justice system's "fail safe." But the fail safe utterly failed in Pondexter's case. The State of Texas thwarted the clemency process by reportedly harassing Pondexter's legal team. His attorneys sought to interview corrections officers and obtain statements that would affirm his transformation during incarceration. But according to published accounts and a lawsuit filed by Pondexter's attorneys, two Harvard law students who had sought to interview a corrections officer in Polk County, near Texas's death row, were reportedly directed by a sheriff's deputy to the sheriff's office, issued trespassing warnings, interrogated, told they likely would be jailed if they returned to the guard's property, and told to advise the sheriff's office before returning to the county. Other officers whom the defense team approached said they feared being written up or fired if they spoke with the defense team about Pondexter or signed an affidavit in his favor. Without the information the guards had to impart about Pondexter, of course, neither the Texas Board of Pardons and Parole nor the Governor could make an accurate determination of whether Pondexter's extraordinary rehabilitation warranted sparing him the death penalty in favor of living out the rest of his days in prison. Pondexter had no meaningful access to the "fail safe" of clemency. If Texas' process for determining who lives and who dies cannot be relied upon — and Pondexter's case clearly exposes that it cannot be — then the state should forfeit its right to execute anyone.
Death Penalty Maintains Racial InequalityThe inauguration of Barack Obama, one day after Martin Luther King Jr. Day, has prompted a healthy discussion in the nation about racial and socioeconomic inequality. As part of that discussion it is important to point out that, just like the divisions in the Jim Crow south, the death penalty continues to divide us by race and socioeconomic status. 
In 1976, when the Supreme Court approved the modern death penalty statutes that were supposed to ensure that death sentences were no longer arbitrary and discriminatory, the Court stated that "capital punishment is an expression of society's moral outrage at particularly offensive conduct . . ." Yet the evidence from the past 33 years demonstrates that capital punishment remains arbitrary and that society's moral outrage continues to be expressed loudest when wealthy white people are homicide victims. As blue ribbon study commissions in California (PDF), and Maryland (PDF) have recently reiterated, empirical research across the country consistently demonstrates that a defendant who kills a white person is far more likely to receive the death penalty than a defendant who kills a person of color, and the racial configuration most likely to result in a death sentence is a black-on-white crime. Similarly, this research demonstrates that defendants whose victims are high in socioeconomic status face a significantly higher risk of execution. The death penalty's racial and socioeconomic bias persists despite the best efforts of legislators and judges to erect fair and equitable capital punishment procedures. This bias sends the clear and morally repugnant message that society values wealthy victims more than poor and middle class victims, and white victims more than victims of color. It is one more reason to abolish capital punishment. A society that follows Reverend King's admonition to judge men and women by their character and not their skin color values the lives of all equally, regardless of racial or socioeconomic status. And capital punishment is harmful to people of color and poor people for another reason: The death penalty aggressively consumes scarce state resources upon which many poor people and people of color depend. In cities across the country, prosecuting death penalty cases has left prosecutors' offices in dire financial straits. In New Orleans, for example, the prosecutor's office has filed for bankruptcy after being held civilly liable for wrongfully sentencing to death an innocent man. Moreover, every dollar spent on the death penalty is one dollar unavailable for community policing and other measures to make poor and African-American communities safer. The election of Barack Obama as our Nation's 44th President shows how far we have come towards healing the wounds of slavery and systemic racial discrimination. Our continued use of the death penalty, predominately in the South, shows how far we have yet to go.
For Christmas, the Poor Get DeathEspecially at this time of year, my mother taught me, we should not forget the poor. We should not forget those who cannot afford a place to sleep or food to eat, much less the holiday trimmings many people take for granted. There are some injustices that result from poverty that don't always come to mind, but that also need attention. One is the erroneous imposition of the death penalty for defendants who are poor and cannot afford effective lawyers. While never appropriate, the use of the death penalty should certainly not depend on how much money the accused possesses, and our government should not wrongly execute people because they lack the means to adequately defend themselves. Empirical studies have repeatedly found that erroneous death sentences most often result from incompetent lawyering, which disproportionately affects the poor. Under Supreme Court rulings, a death sentence cannot be upheld unless the jury imposing it has had an opportunity to consider all pertinent "compassionate or mitigating factors stemming from the diverse frailties of humankind." But most often, death sentences result because unprepared and under-funded defense attorneys utterly fail to learn of and present to the jury such mitigating and compassionate factors. For example, a Tennessee jury sentenced Gaile Owens to death for having her husband murdered without the jury ever having heard that the husband brutally sexually abused her over a period of thirteen years. In one incident during one of her pregnancies, his brutality caused her placenta to detach partially, resulting in an emergency C-section. The jury heard none of this evidence due to defense counsel's failure to investigate, a key issue in Ms. Owens' pending appeal. Appointed counsel for Ms. Owens completed time sheets stating that counsel conducted a scant two-hour investigation in preparation for the mitigation or sentencing phase of Ms. Owens' trial. That is not justice. This year, poor people receive an extra lump of coal in their stockings. In one of its final moves before it leaves office, the Department of Justice under the Bush administration recently promulgated final regulations that will speed the path to execution for people like Ms. Owens. Under these regulations, promulgated pursuant to President Bush's Patriot Act II, states will be permitted to radically shorten the amount of time that many death penalty prisoners have to seek federal habeas corpus review of their cases, if the states can meet requirements for adequate representation of poor death-row inmates that many experts have called a "a sham and a ruse." Unless the new Patriot Act regulations are reversed, our government may execute poor death-row inmates like Ms. Owens without providing them a crucial federal review of egregious errors in their cases such as their attorneys' woefully inadequate representation. One day, like Mr. Scrooge viewing the ghosts of Christmas past, Americans will look back with shame on this period in which poverty played a decisive role in determining who lives and who dies.
The Importance of the Sixth Amendment Right to Counsel in Capital CasesA person does not need to go any farther than a Law & Order episode to understand the Sixth Amendment of the U.S. Constitution. We hear the officers on TV tell suspects that if they cannot afford a lawyer, one will be provided for them. The Framers of the Constitution made the statement more artfully when they wrote that the accused in every criminal prosecution “shall enjoy the right to have the Assistance of Counsel for his defence.” 
In Gideon v. Wainright, the Supreme Court explained the importance of this right, stating, “[I]n our adversary system of criminal justice, any person haled into court, who is too poor to hire a lawyer, cannot be assured a fair trial unless counsel is provided for him.” The right to counsel protects all of us from being subjected to criminal prosecution in an unfair trial. But nowhere is this right more important than when the accused faces the death penalty. Unfortunately, the Sixth Amendment’s promise of counsel for all, including the poor, often remains unfulfilled in capital cases. The Supreme Court has affirmed that this right includes the right to an effective lawyer, but all too often, defense attorneys involved in capital cases prove inept, ineffectual, underfunded, and overmatched by the State’s attorneys. Some of these attorneys have even been drunk or asleep at trial. Courts overturn death sentences on a weekly basis. An extraordinary number of these reversals are granted because the death sentence was a result of egregiously incompetent defense lawyering. In fact, studies show that nearly 70 percent of death sentences are overturned during the appellate process, and a large proportion of these reversals are due to a finding that the condemned received poor and ineffective representation at trial. Not every capital crime results in a death sentence; most do not. But the greatest predictor of who will live or die is not the severity of the crime or the accused’s criminal background. It is, instead, the quality of the lawyer for the accused. Capital defendants represented by quality counsel rarely receive a death sentence (and wealthy people virtually never do). Shamefully, the whims of local governments and states determine whether, in a particular location, an unprepared and underfunded lawyer or a trained and funded institutional defender will be available for an indigent defendant. For example, a capital defendant in North Carolina will generally receive vastly superior representation than a capital defendant who may be accused of an identical crime in Alabama. The difference is that activists and attorneys in North Carolina insisted that the legislature make indigent capital defense a priority. Unfortunately, our allies in Alabama have not been as successful yet. In fact, this disparity exists in the state known for its eagerness to use its death chamber, Texas. A defendant in west Texas will (as of recently) have quality representation by an institutional lawyer, while defendants in other parts of Texas will not. Making matters worse, obtaining relief based on ineffective trial counsel depends on whether the condemned inmate has an effective lawyer representing him during his post-conviction appeals. Here, again, the quality of post-conviction counsel varies wildly and can be downright abysmal. For example, the ACLU has documented numerous cases where lawyers in Florida failed to meet mandatory filing deadlines for their death-sentenced clients’ petitions. The Supreme Court has not recognized the Sixth Amendment right to counsel beyond an initial direct appeal. This means that there is no guarantee that the condemned will eventually receive a good lawyer capable of convincing the reviewing court that the death sentence was a result of poor lawyering in the first place. The death penalty is the ultimate infringement on a person’s civil liberties. While the ACLU's Capital Punishment Project favors the abolition of the death penalty for many reasons, we understand that it may not happen right away. Therefore, since capital punishment continues, we would hope that the next President would use the power of the federal purse (i.e., federal funding for criminal justice-related programs) as an incentive for states to provide fully-funded quality institutional defense organizations to ensure the promise of the Sixth Amendment and, in turn, the right to a fair trial. The same can be done to ensure adequate lawyering for post-conviction cases. Nothing less than the adequate counsel our Constitution guarantees is acceptable when the ultimate punishment is at stake. Tags: constitutionvoter
Death Row Inmates Must Not Be Denied Habeas CorpusOriginally posted on Daily Kos. The Supreme Court’s decision last week in Boumediene v. Bush reaffirmed the crucial importance of the ancient writ of habeas corpus. Boumediene constitutes a monumental victory for the rule of law, and over the lawlessness of the Bush administration’s failed policy of detaining terrorism suspects while denying them the right to challenge their imprisonment. But while the Boumediene decision addresses detainees’ rights to challenge their detention at Guantanamo, its lessons can also be applied to the troublesome and severe constrictions placed on the writ’s availability for death-sentenced prisoners languishing on our own state death rows. Our system of capital punishment is fraught with error and unfairness. Far too many death sentences are obtained in proceedings infected by racial discrimination, the prosecutors’ suppression of evidence helpful to defense, and other constitutional errors. We do not necessarily sentence to death the worst of these worst, but often those represented by the worst attorneys. And we sentence to death people who are innocent, as evidenced by the rash of exonerations from death row in recent years. All of these problems involve constitutional violations historically heard by federal courts sitting in habeas review, and shine a bright line on the reason for habeas corpus. Writing for the Boumediene court, Justice Anthony Kennedy stated that the "Framers viewed freedom from unlawful restraint as a fundamental precept of liberty, and they understood the writ of habeas corpus as a vital instrument to secure that freedom." He then traced the existence of the writ to the 13th century, when it was used to enforce the Magna Carta. Because the Framers’ experience taught them that the writ’s availability could be easily restricted or suspended, they enshrined the right to the writ of habeas corpus in our Constitution. Fast forward to 1996. Propelled by a wave of tough-on-crime rhetoric, Congress legislated substantial curtailment of the availability of the writ for state prisoners challenging their death sentences in federal court. Under this 1996 law, despite federal courts’ historical duty to "say what the law is" (a duty the Bounmedine court reaffirmed), a federal court cannot order the writ of habeas corpus for a death-sentenced prisoner whose constitutional rights have been violated. Only in the event that a federal judge determines that a state court unreasonably applied binding Supreme Court precedent, may she order the writ of habeas corpus. The 1996 law also passed stringent deadlines for seeking the writ. The right to the great writ is extinguished when death-row inmates miss these deadlines, even through no fault of their own. Given the appointment in many states of incompetent, untrained, and under-resourced attorneys to handle habeas and post-conviction matters, deadlines are frequently missed. The ACLU Capital Punishment Project recently documented an astonishing sixteen capital cases in which private lawyers employed in Florida missed their clients’ deadlines for seeking federal habeas review. Making matters worse, in 2005, Congress passed legislation allowing some states to apply even more draconian deadlines for the filing and processing of federal habeas petitions — subject not to the approval of the federal courts or some neutral body, but to the approval of the nation’s top prosecutor, the attorney general. In 1995, before these legislative constrictions on habeas, the Supreme Court granted federal habeas relief to death-row inmate Curtis Kyles, because the prosecutor had violated his constitutional rights by withholding evidence of his innocence, and Louisiana state courts failed to remedy this error. The prosecutor eventually dismissed charges against Mr. Kyles because there was no evidence of his guilt. Mr. Kyles was released from death row, and now walks free. Federal habeas review saved his life. Dissenting from the Supreme Court’s opinion, however, Justice Scalia wrote that the state courts had correctly applied the relevant law to the facts. Under the stringent version of habeas passed in 1996, it is not clear Mr. Kyles would have won relief (because the state court’s were arguably not unreasonably incorrect), and an innocent man could have been executed. Boumediene teaches that we can be secure while upholding the rule of law and the availability of habeas corpus, "a right of first importance." It’s time for the courts and Congress to reexamine the availability of habeas corpus for those, like Curtis Kyles, facing the ultimate punishment.
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