The Champion
November 1996

Capital Cases
Does the Bill of Rights Apply Here Any More? Evisceration of Habeas Corpus and Denial of Counsel to Those Under Sentence of Death

By Stephen B. Bright

Stephen B. Bright is Director of the Southern Center for Human Rights in Atlanta, GA. An NACDL Director, he has served people facing the death penalty at trials, on appeals and in post-conviction proceedings since 1979. He has taught courses on capital punishment, criminal procedure and international human rights at Yale, Harvard, Georgetown, Northeastern, Florida State and St. Mary's law schools; and has testified extensively before the U.S. Congress and many state legislatures.

Over the centuries [the Writ of Habeas Corpus] has been the common law world's "freedom writ" by whose orderly processes the production of a prisoner in court may be required and the legality of the grounds for his incarceration inquired into, failing which the prisoner is set free. We repeat what has been so truly said of the federal writ: "there is no higher duty than to maintain it unimpaired," and unsuspended, save only in the cases specified in our Constitution
Smith v. Bennett.1

[I]n our adversary system of criminal justice, any person hauled into court, who is too poor to hire a lawyer, cannot be assured a fair trial unless counsel is provided for him. . . . [L]awyers in criminal cases are necessities, not luxuries
Gideon v. Wainwright.2

Habeas corpus review and the right to counsel have been celebrated at home and revered abroad as two fundamental components of the American criminal justice system.

Although there has always been a substantial gap between the pronouncements of courts, bar leaders and commentators about the importance of these components and the quality of justice actually received by the poor, the goals of meaningful habeas corpus review and providing competent counsel to the poor have been seen as indispensable elements in the larger quest for equal justice for all.

Those goals were abandoned during the past year by the 104th Congress.

In pursuit of a criminal justice system that will serve the goal of vengeance, Congress eliminated funding for the death penalty resource centers and limited habeas corpus by imposing a statute of limitations,3 requiring federal courts to defer to the legal conclusions of state courts,4 severely limiting when a federal court may conduct an evidentiary hearing,5 and all but eliminating a second or "successive" petition for habeas corpus relief.6

Many states are following suit, placing unreasonable time restrictions or other limits on their state post-conviction review processes and cutting back on already understaffed and overworked programs which provide counsel for the poor.

The stated objectives of these measures is to hasten executions, but the resulting injustices will not be limited to those condemned to die. Anyone unconstitutionally convicted of any crime, regardless of the sentence, faces these new barriers to obtaining justice. The increased speed will be obtained at the cost of fairness and reliability.

These developments create extraordinary challenges for criminal defense attorneys. This column surveys the damage and addresses the challenges.

The Once-Great Writ of Habeas Corpus
There is no better example of the importance and value of the Writ of Habeas Corpus than the case of Rubin "Hurricane" Carter, who was freed by a federal judge after being wrongfully imprisoned by New Jersey for almost 20 years.

Carter was the number-one-ranked contender for the middleweight boxing crown in 1966 when he and a companion were arrested and charged with the murders of three white people. They were convicted and narrowly escaped the death penalty. Carter was sent to Trenton State Prison and later to Rahway. While in prison, Carter wrote the story of his life, The 16th Round: From Number 1 Contender to Number 45472 (1974).

In 1980, Lesra Martin, a 16-year-old African-American youth from Brooklyn, who had been taken in by a group of Canadians, bought a copy of Carter's book for $1 at a used-book fair in Toronto. He and his Canadian friends read the book and became convinced of Carter's innocence. Working with attorneys Myron Beldock and Leon Friedman, the Canadians spent four and a half years investigating the case and providing Carter moral support.

After Carter had been rejected many times in the New Jersey courts, United States District Judge H. Lee Sarokin held in 1985 that the prosecution had withheld critical exculpatory evidence and improperly argued racial hatred as the motive for the crime, and granted habeas corpus relief.7 Carter was released and has lived in Canada ever since.

Today, Rubin Carter is one of the most eloquent spokesmen in support of the Writ of Habeas Corpus. He has testified before Congress and spoken at law schools.8 He is the director of an international organization, the Association in Defense of the Wrongly Convicted, and seeks the release of other people who were wrongfully convicted and imprisoned.

But federal habeas corpus relief has corrected other injustices besides the conviction of innocent people.

The United States Supreme Court unanimously ordered habeas corpus relief for Tony Amadeo after it was revealed at a federal evidentiary hearing that the prosecutor had secretly directed jury commissioners to under-represent African-Americans in the jury pools.9 Amadeo had been sentenced to death by a jury drawn from the rigged pools.

Jimmy Horton was granted habeas corpus relief based on evidence presented at a federal evidentiary hearing that the prosecutor, who struck African-Americans to get the all-white jury that sentenced Horton to death, routinely struck all black citizens from jury service.10

William Alvin Smith, a mentally retarded youth sentenced to death in Georgia, was granted habeas corpus after a federal district judge heard evidence of Smith's mental retardation and concluded that because of his disability, he did not understand the Miranda rights read to him.11

Amadeo, Horton and Smith were not innocent, but they were unconstitutionally sentenced to death. Like many others granted federal habeas corpus relief, they were not resentenced to death upon return to the state courts. Tony Amadeo graduated summa cum laude from Mercer University in the summer of 1995.

It is doubtful whether under the new habeas law, evidentiary hearings would even be granted in these and scores of other cases in which relief was granted under the previous law. The constitutional violations will still exist, but Congress has directed the courts to refuse to hear the evidence necessary to prove them.

Many of those who languished in prison for years, as did Rubin Carter, before gaining access to the federal courts and ultimately obtaining relief, would not have been able to comply with a statute of limitations.

Nor is it clear that relief would have been granted in many of these cases under the new standard of review which prohibits federal courts from setting aside a state court's legal conclusions unless the state court's decision was "contrary to or involved an unreasonable application of clearly established federal law."12

The Supreme Court upheld the new provisions regarding successive habeas petitions last summer in Felker v. Turpin.13 A successive petition is allowed only when it relies on a new rule of constitutional law, which applies retroactively to cases on collateral review, or a constitutional violation that could not have been discovered previously through due diligence and it is established that "but for the constitutional error, no reasonable fact-finder would have found the applicant guilty of the underlying offense."14

Before a petitioner can file a successive petition in a district court, the petition must be presented to a three-judge panel of the U.S. Court of Appeals which must determine whether the petition makes a prima facie showing that it meets these requirements.15

The U.S. Supreme Court concluded that these new provisions do not constitute a suspension of the Writ of Habeas Corpus prohibited by the Constitution.16 The Court also concluded that the new law, which sought to deny petitions for rehearing at the Court of Appeals and petitions to the Supreme Court for certiorari, does not preclude the Supreme Court from entertaining an application for habeas corpus relief. The Court's consideration is "informed" by the new provisions.

Long before Congress acted, the Supreme Court, at the urging of Chief Justice William Rehnquist, had erected numerous barriers to the vindication of violations of the Bill of Rights through habeas corpus.

Then-Justice Rehnquist authored the Court's opinion in Wainwright v. Sykes,17 which set new, strict rules of procedural default. Subsequent decisions from the Court has made clear that those rules are air tight and unreasonable.18 The Court had also excluded Fourth Amendment claims from habeas corpus review,19 made it more difficult for a habeas petitioner to obtain an evidentiary hearing to prove a constitutional violation,20 adopted an extremely restrictive doctrine regarding the retroactivity of constitutional decisions,21 reduced the burden on the states to establish harmless error once a constitutional violation was found,22 and erected new barriers to the filing of a second habeas petition.23

Justice Harry Blackmun found the majority of the Supreme Court to be on a "crusade to erect petty procedural barriers in the path of any state prisoner seeking review of his federal constitutional claims" which had resulted in "a Byzantine morass of arbitrary, unnecessary, and unjustifiable impediments to the vindication of federal rights."24

Justice John Paul Stevens observed that "the Court has lost its way in a procedural maze of its own creation" and "grossly misevaluated the requirements of 'law and justice.'"25

Instead of pointing a way out of the maze, Congress has contributed to its complexity by adding even more barriers which will produce even more arbitrary and unjust results.

Denial of Counsel to Those Most in Need
Before mourning the decimation of the resource centers (which are also called post-conviction defender organizations), it is appropriate to celebrate for a moment the outstanding work done by the people at those programs under extraordinarily difficult circumstances in complex cases involving the highest stakes.

The resource centers, created in 1987, were small programs which were given an enormous responsibility. All together the resource centers had about 200 lawyers to deal with the post-conviction representation of over 3000 men, women and children condemned to death.

When the resource centers were created, it was envisioned that they would be jointly funded by the state and federal governments to recruit lawyers to provide representation to the condemned in both state and federal collateral review. But many states with the largest death rows, such as Texas, Alabama and Nevada, refused to make any contribution to their state resource centers.

As a result, many of the centers were understaffed. They had too many complex cases which had to be litigated under immense pressure without adequate time or resources. But they proved what a difference dedicated lawyers can make by building an expertise, working long hours, thoroughly investigating every aspect of a case, and never giving up.

Walter McMillian, an African-American sentenced to death in Monroeville, Alabama, who spent six years on that state's death row, is free today because Bryan Stevenson and other lawyers at the Alabama Resource Center proved that he was innocent of the murder for which he had been condemned to die.26

Lloyd Schlup is alive today because Sean O'Brien and other lawyers at the resource center in Missouri developed evidence of his innocence. After first being denied federal habeas corpus relief, the lawyers persuaded the United States Supreme Court to give them an evidentiary hearing.27 At the hearing, they presented evidence demonstrating that Schlup was entitled to habeas corpus relief.28

Curtis Lee Kyles is alive today because the resource center in Louisiana marshalled evidence of his innocence and, in a federal habeas corpus case, persuaded the Supreme Court that Kyles was entitled to a new trial because the prosecution had failed to disclose critical exculpatory evidence.29

In addition to providing direct representation, the lawyers at the resource centers recruited lawyers to provide pro bono representation. Together they exposed constitutional violations in other cases, resulting in numerous death sentences being set aside and new trials ordered. A committee of federal judges concluded that the resource centers were cost effective and enhanced the quality of representation in capital cases.30

Because the resource centers made a difference, they came under attack by the National Association of Attorneys General. The attack was led by the new attorney general of South Carolina who ran on a promise to replace the state's electric chair with an electric sofa so that more people could be executed at one time.31

Undoubtedly, it is a bad reflection on the criminal justice system that innocent people are being sentenced to death, but the elimination of funding for the resource centers does not solve this problem. It only hides it and increases the likelihood of injustices going uncorrected.

The elimination of funding has resulted in the closing of resource centers in some states. Those sentenced to death in Mississippi have nowhere to turn to seek counsel. Other resource centers are a mere shadow of their former selves. For example, the resource center in Texas, which once had a budget of over $3 million and 25 attorneys, now has a budget of only $50,000 and a single lawyer.

Some programs, through heroic efforts of the lawyers remaining there, have managed to survive. For example, Bryan Stevenson and three other attorneys have created without any state or federal money a new entity called the Equal Justice Initiative, which provides representation to those facing the death penalty in Alabama. But four lawyers cannot begin to represent all 150 people on Alabama's death row or provide assistance to lawyers defending an equal number of new capital cases in the trial courts.

Some states, such as Georgia and Mississippi, provide no compensation to lawyers for representing inmates in state post-conviction proceedings. Others have unreasonable limits on what lawyers may receive for representing an indigent person in state collateral proceedings. Texas, which has 400 people under death sentence, limits compensation at $7500. Other states pay only a token amount, such as the $600 that Alabama pays for post-conviction representation.

Not surprisingly, many of those under death sentence in these states are without counsel to represent them in post-conviction proceedings. Over 20 condemned persons in Alabama and Georgia are without counsel and there are many more in other states.

Although appointment of counsel and compensation under the Criminal Justice Act is provided for habeas corpus representation in the federal courts, inmates first need lawyers to represent them in seeking remedies through the state post-conviction proceedings. Those seeking federal review are required to first seek any state remedies before petitioning for federal relief. And many inmates on death row do not even know how to ask that a lawyer be appointed for them.

Thus, even in capital cases, some people may be denied their day in court because they do not have a lawyer and cannot comply with the statute of limitations. The clock is ticking on many inmates who have completed direct appeal but have no lawyer to file applications for state post-conviction relief.

Indifference to Injustice
In restricting habeas corpus and eliminating funding for the resource centers, Congress has shown a remarkable indifference to injustice. The starkest example is the adoption of a statute of limitations on habeas corpus that is not tied to the provision of counsel. Even worse, Congress took away counsel for the condemned before adopting the statute.

Never before in the nation's history has there been a statute of limitations on habeas corpus. The time limits in the new habeas law will be challenged as a suspension of habeas corpus prohibited by the Constitution.32 However, if they are upheld, many people convicted of crimes who are without counsel will be unable to pursue relief before the statute of limitations expires.

The Supreme Court has held that the states are not required to provide counsel for the poor for post-conviction review,33 even in capital cases.34 For hundreds of those serving non-capital sentences and even for some under death sentence, the time will run out before they can get a lawyer and get to court.

The statute of limitations also creates the possibility of fatal consequences to the client for a mistake by counsel. The person whose lawyer misses the deadline created by the statute of limitations apparently will be barred from ever seeking federal review.35

Indifference to injustice is most obvious as the new law applies to capital cases. The changes in habeas corpus law were aimed specifically at capital cases and funding for capital resource centers was eliminated despite undeniable signs that something is fundamentally wrong with the way in which people are being sentenced to death in the United States.

"The recent development of reliable scientific evidentiary methods has made it possible to establish conclusively that a disturbing number of persons who had been sentenced to death were actually innocent," U.S. Supreme Court Justice John Paul Stevens observed in a speech to the American Bar Association (ABA) in July.36 In the 20 years since the Supreme Court upheld the resumption of capital punishment, 59 persons sentenced to death have been freed after establishing their innocence.37

Justice Stevens told the ABA that "the cases in which the innocence of death row inmates has been established in protracted post-conviction proceedings" are the "unfortunate consequences" of the failure to provide competent counsel in many capital cases.38

Another sign that something is wrong is that federal courts have found constitutional violations and granted habeas corpus relief in 40 percent of the capital cases they have reviewed.39 In some states the percentage is even higher. In Georgia, for example, the federal courts have set aside either the conviction or death sentence in two-thirds of the capital cases they have reviewed. Many of those sentenced to death at trials marred by constitutional violations were not sentenced to death at their retrials.

Additionally, virtually every report that has examined the operation of the death penalty has found racial discrimination and arbitrariness in its infliction.40 One of the most recent reports reaching this conclusion was issued in July by the International Commission of Jurists, a highly regarded organization made up of jurists from around the world, after a visit to the United States and extensive study by members from Australia, India, Nigeria and Sweden.41

The removal of state court judges from office by voters after campaigns in which capital punishment was the central issue is another indication that capital cases are often caught up in the passions and prejudices of the moment. It is particularly in such cases that racial minorities, the poor, the unpopular and the despised need the protection of independent, life-tenured federal judges, not judges who must be looking over their shoulders at the next election.

Justice Penny White was voted off the Tennessee Supreme Court in August in a retention election which became a referendum on the death penalty. Since Rose Bird and three of her colleagues were voted off the California Supreme Court in 1986 because of their votes in capital cases, trial and appellate judges in other states have also been removed from the bench for being "soft" on the death penalty.42 The judges who remain on those courts know that by issuing a unpopular ruling, even though required by the Constitution, they may be signing their own political death warrants.

These indications that something is terribly amiss might be reasons to reconsider the appropriateness of capital punishment or, at least, to ensure that those facing the ultimate punishment were adequately represented and their cases carefully reviewed. But the reverberations of injustice were ignored by a Congress caught up in the politics of crime, in which each political party attempts to demonstrate that it is tougher than the other.

Responding to the Challenge
The great challenge posed by this sad state of affairs is to see that no person faces the executioner alone. Unless hundreds of lawyers volunteer their services immediately, many persons condemned to death in violation of the Constitution will be denied state and federal review of their claims simply because they do not have counsel to pursue relief.

The National Association of Criminal Defense Lawyers (NACDL) has moved swiftly to respond to this crisis. Before the restrictions on habeas corpus had been passed, the NACDL Board of Directors had hired Renée McDonald to be the organization's death penalty resource counsel. But the success of NACDL's efforts will depend upon the response of its members to this crisis.

The responsibilities of the resource counsel include involving NACDL members in responding to the need for representation, developing a catalog of resources, assisting lawyers in the direct representation of individuals facing the death penalty, and alerting the membership to significant developments in the courts or legislatures.

The most immediate and urgent need is for representation at every level of the process. Scores of condemned persons all across the country are desperately in need of lawyers to represent them in state and federal post-conviction proceedings. It is important that these people not only be represented, but represented well and aggressively in mounting challenges to various aspects of the new habeas law. Anyone willing to take a case should contact Renée McDonald at (404) 688-1202.

Many individuals facing the death penalty could avoid the post-conviction review process altogether if they were adequately defended at trial. But judges in many jurisdictions appoint the least experienced and least capable lawyers to defend capital cases and then deny the compensation and funds for experts necessary to defend the cases properly.

In jurisdictions where this occurs, efforts must be made to bring about indigent defense systems that are independent of judges and committed to the zealous defense of the accused. While that will make a difference in the long term, there remains a need for capable, caring lawyers to provide representation in individual cases. Defense lawyers in some communities have come together to ensure that all of those facing death receive adequate representation at trials. Similar efforts are needed in other communities.

In addition, members of Congress must be made aware of the injustices which are resulting from their irresponsible actions.

Congress should be urged to restore immediately funding for counsel to represent the condemned in post-conviction proceedings. Because capital post-conviction litigation involves a very complex and demanding area of the law, the same specialization is needed for counsel litigating habeas cases on behalf of petitioners that the states receive in defending those actions from offices of their attorneys general.

Members of the House and Senate must be urged to resist any further efforts to eliminate federal habeas corpus review. Instead, as discussed at the NACDL legislative fly-in, they should be encouraged to offer legislation to restore the Writ of Habeas Corpus to its proper place as the common law world's "freedom writ."

1. Smith v. Bennett 365 U.S. 708, 712-13 (1961), quoting Bowen v. Johnson, 306 U.S. 19 26 (1939).

2. Gideon v. Wainwright, 372 U.S. 335, 344 (1963).

3. The Anti-Terrorism and Effective Death Penalty Act of 1996, Pub. L. 104-132, 110 Stat. 1214, 101, 105, amending 28 U.S.C. Title 153, to establish a one-year statute of limitations. A statute of limitations of 180 days is provided by 107 of the Act for states which meet certain standards of providing counsel in capital post-conviction proceedings. The time limits for petitions filed under 28 U.S.C. 2255 are discussed by Alan Ellis, Peter Goldberger and Nancy Simmons in It's Not Too Late: Time Period for Filing 2255 Motions Under the New Habeas Reform Law, The Champion, July 1996.

4. The Anti-Terrorism and Effective Death Penalty Act of 1996, 104(3).

5. Id., 104(4).

6. Id., 105, 106 (limiting any successive habeas corpus petition to constitutional violations which resulted in the conviction of an innocent person or involved a new rule of law that applies retroactively to cases on collateral review).

7. Carter v. Rafferty, 621 F. Supp. 533 (D. N.J. 1985), aff'd, 826 F.2d 1299 (3d Cir. 1987), cert. denied, 484 U.S. 1011 (1988).

8. See, e.g., Rubin "Hurricane" Carter, Keynote Address, 35 Santa Clara L. Rev. 425 (1995).

9. Amadeo v. Zant, 486 U.S. 214 (1988).

10. Horton v. Zant, 941 F.2d 1449 (11th Cir. 1991), cert. denied, 117 L. Ed. 2d 652 (1992).

11. Smith v. Kemp, 664 F. Supp. 500 (M.D. Ga. 1987), aff'd by equally divided court, 887 F.2d 1407 (11th Cir. 1989).

12. The Anti-Terrorism and Effective Death Penalty Act of 1996, supra, 104(3).

13. 116 S. Ct. 2333 (1996).

14. Anti-Terrorism Act, supra, 106(b)(2).

15. Id., 106(b)(3)(C).

16. U.S. Const. Art. I, 9, Clause 2.

17. 433 U.S. 72, 88-91 (1977).

18. See, e.g., Coleman v. Thompson, 501 U.S. 722 (1991); Dugger v. Adams, 489 U.S. 401 (1989); Smith v. Murray, 477 U.S. 527, 533-36 (1986); Engle v. Isaacs, 456 U.S. 107, 130-34 (1982); Timothy J. Foley, The New Arbitrariness: Procedural Default of Federal Habeas Claims in Capital Cases, 23 Loy. L.A. L. Rev. 193 (1989).

19. Stone v. Powell, 428 U.S. 465 (1976).

20. Keeney v. Tamayo-Reyes, 112 S. Ct. 1715 (1992).

21. Teague v. Lane, 489 U.S. 288 (1989). For a discussion of the Court's retroactivity doctrines, see James S. Liebman, More than "Slightly Retro:" The Rehnquist Court's Rout of Habeas Corpus Jurisdiction in Teague v. Lane, 18 N.Y.U. Rev. L. & Soc. Change 537 (1991).

22. In Brecht v. Abrahamson, 113 S. Ct. 1710 (1993), the Court held that habeas corpus relief is not to be granted unless the court concludes that the constitutional error had "substantial and injurious effect or influence in determining the verdict." In contrast, on direct appeal, once a constitutional violation is established relief must be granted unless the government can establish that the error was "harmless beyond a reasonable doubt." Chapman v. California, 386 U.S. 18 (1967).

23. McCleskey v. Zant, 499 U.S. 467 (1991).

24. Coleman v. Thompson, 501 U.S. 722, 758-759 (1991) (Blackmun, J., dissenting).

25. Smith v. Murray, 477 U.S. 527, 541 (1986) (Stevens, J., dissenting).

26. Peter Applebome, Black Man Freed After Years on Death Row in Alabama, N.Y. Times, Mar. 3, 1993, at A1. See also Pete Earley, Circumstantial Evidence: Death, Life and Justice in a Southern Town (Bantam Books, 1995).

27. See Schlup v. Delo, 115 S.Ct. 851 (1995).

28. Schlup v. Bowersox, No. 4:92CV433-JCH, Memorandum Opinion and Order of May 2, 1996 (D. Mo. 1996).

29. Kyles v. Whitley, 115 S .Ct. 1555 (1995).

30. Committee on Defender Services, Judicial Conference of the United States, Report of the Subcommittee on Death Penalty Representation (June 1995).

31. Marcia Coyle, Republicans Take Aim At Death Row Lawyers, Natl. L. J., Sept. 11, 1995 at A1, A25.

32. U.S. Const. Art. I, 9, Clause 2.

33. Ross v. Moffitt, 417 U.S. 600 (1974).

34. Murray v. Giarratano, 492 U.S. 1 (1989).

35. See, e.g., Coleman v. Thompson, 501 U.S.722 (1991) (federal habeas review of issues raised in state post-conviction proceedings barred because counsel failed to file notice of appeal on time in the state courts).

36. Justice John Paul Stevens, Opening Assembly Address, American Bar Association Annual Meeting, Aug. 3, 1996, at 13.

37. Ted Gest, A House Without a Blueprint, U.S. News & World Report, July 8, 1996 at 41.

38. Justice John Paul Stevens, supra, at 12. For a description of the lack of indigent defense systems and the state of indigent defense, see Stephen B. Bright, Counsel for the Poor: The Death Sentence Not for the Worst Crime but for the Worst Lawyer, 103 Yale L. J. 1835, 1849-1855 (1994).

39. Liebman, supra, at 541 n. 15.

40. See, e.g., U.S. General Accounting Office, Death Penalty Sentencing: Research Indicates Pattern of Racial Disparities (1990) (reporting that a synthesis of 28 studies shows a pattern of racial disparities in charging, sentencing and imposition of the death penalty in the statutes adopted since 1972); Stephen B. Bright, Discrimination, Death and Denial: The Tolerance of Racial Discrimination in the Infliction of the Death Penalty, 35 Santa Clara L. Rev. 433 (1995) (describing racial discrimination in the infliction of the death penalty and the failure of courts to deal with it).

41. International Commission of Jurists, Administration of the Death Penalty in the United States (June 1996).

42. See Stephen B. Bright and Patrick J. Keenan, Judges and the Politics of Death: Deciding Between the Bill of Rights and the Next Election in Capital Cases, 75 Bos. U. L. Rev. 759 (1995) (describing numerous instances in which judges have been voted off state courts because of their votes in capital cases).

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