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That Rarest of Rare — A Critical Congressional Hearing on the Death Penalty

Ian S. Thompson,
Senior Legislative Advocate,
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December 9, 2009

Yesterday was a very rare and noteworthy day as far as Congress goes. In my entire time working at the ACLU in fact, I can’t ever recall a similar such occasion. What could possibly be so rare in the halls of Congress you ask? The House Judiciary Committee’s Subcommittee on the Constitution, Civil Rights, and Civil Liberties held a hearing on the impact of limiting appeals for those facing the death penalty.

Those working to slow down and halt the messy, complicated and fundamentally flawed machinery of death that is our system of capital punishment more commonly have to push back against efforts in Congress which seek to expand the reach of the death penalty to new categories of crime. Opportunities to critically examine the many failures in the death penalty system don’t come along often;, this hearing helped to expose serious shortcomings in how the death penalty appeals process works (or doesn’t, as is often the case).

A central component of the hearing was legislation recently introduced by Rep. Henry Johnson (D-Ga.) — H.R. 3986, the Effective Death Penalty Appeals Act. This bill, which the ACLU has endorsed, would ensure the availability of federal habeas corpus relief — the opportunity to have federal judicial review of death sentences — for defendants sentenced to death, but who are later able to present evidence establishing their innocence that may not have been available at the time of trial, and could have led to a different result if it had been presented. Why is this legislation needed? Since the death penalty was restored in 1973, 139 men and women have been released from death row. These individuals were freed as a result of evidence, which may not have been available at the time of their original trial, which later proved crucial in establishing their innocence.

Federal laws like the Antiterrorism and Effective Death Penalty Act of 1996 and the USA PATRIOT Improvement and Reauthorization Act of 2005, as well as numerous Supreme Court decisions, have greatly limited the ability of federal review of state court death penalty convictions. In addition to the denial of relief to defendants who have powerful evidence of their innocence, many defendants who have suffered serious constitutional violations, such as inadequate defense counsel, racially discriminatory jury selection, and suppression of exculpatory evidence, have been left without federal judicial recourse.

Providing federal courts with the opportunity to hear evidence of an individual’s innocence, as well as other serious constitutional violations, is an essential component of a fair justice system, and is particularly critical in cases where a defendant has been sentenced to death.

Witnesses at yesterday’s hearing raised a wide array of additional problems with death penalty appeals including the lack of funding and support for post-conviction legal representation, and rigid procedural hurdles that greatly limit access to the federal system.

Rather than representing a final end-point, hopefully this important hearing will serve to begin the effort to reform the death penalty appeals process and the draconian restrictions on access to federal review for death row prisoners. I was particularly pleased to hear Subcommittee Chairman Nadler (D-N.Y.) announce that a hearing is currently in the works on the heartbreaking case of Cameron Todd Willingham. For any reader not familiar with this case, The New Yorker article “Trial by Fire” is a must-read.

We’ll be sure to keep you all up-to-speed as things progress here in Washington. Stay tuned.

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