Righting Wrongful Convictions: The Need for Federal Legislation

Wrongly convicted persons face many barriers in establishing their innocence. For many, the first (and often insurmountable) barrier is the inability to secure competent legal counsel. The U.S. Supreme Court ruled that all defendants in criminal cases have a right to counsel. But for many poor defendants, this right translates into representation by inexperienced, overworked, uninterested, or even incompetent attorneys. Only where there is blatant incompetence may there be legal recourse — but only if the convicted person can find an attorney willing to pursue this issue.

The problems faced by indigent defendants were exacerbated by FY96 federal funding decisions. Congress sharply cut back funding for the Legal Services Corporation (which provides legal assistance for poor persons) and eliminated funding for death penalty resource centers which provide attorneys for death row inmates. For poor defendants, the Constitutionally-guaranteed right to equal protection of the laws is bitter irony.

Limiting appeals

A second barrier is the time limits that states place on petitions to reopen cases based on newly-discovered evidence. Virginia requires a claim of innocence based on newly-discovered evidence to be brought within three weeks of final appeal. Many states are nearly as bad. Thirty-three states require a claim of innocence based on newly-discovered evidence to be brought within six months of the final appeal. Only seven states have no time limit. Why should there be any restriction on the introduction of newly-discovered evidence when a person’s innocence (and, perhaps, life) is at stake?

Restrictions on federal appeals constitute a third barrier to establishing innocence. These restrictions were included in the 1996 Anti-Terrorism and Effective Death Penalty Act (AEDPA). To prevent death row inmates from postponing their executions by filing petition after petition, the bill set a six-month limit on filing a federal habeas corpus appeal in capital cases after exhausting the final state appeal. Moreover, the AEDPA set a one year limit for non-capital cases. In setting these limits, legislators gave judicial expediency precedence over human life.

Restricting federal review

The AEDPA created a fourth barrier to proving innocence and to raising procedural problems with a trial. The law bars federal judges who are hearing death penalty appeals from taking a fresh look at constitutional issues unless the state court’s ruling on constitutional issues were “contrary to, or involved an unreasonable application of, clearly established federal law as determined by the Supreme Court.” Now, the courts of all 50 states can interpret the U.S. Constitution as they will and the federal courts can rectify only egregious misinterpretations. The U.S. Supreme Court recently upheld this provision of the AEDPA (Williams v. Taylor).

The U.S. Supreme Court had, prior to AEDPA, constrained its own role in death penalty cases. In a controversial 1993 case (Herrera v. Collins), Chief Justice Rehnquist wrote for the majority that “Herrera’s claim of actual innocence does not entitle him to federal habeas relief” and pointed out that the proper forum for Herrera to raise his innocence claim is with the Texas board of pardons. Perhaps, Rehnquist reasoned, if there were no state board and a petitioner made an especially persuasive claim to “actual innocence,” then the federal courts might intervene. However, he went on, “That threshold [of persuasiveness] would necessarily be extraordinarily high because of the very disruptive effect that entertaining such claims would have on the need for finality in capital cases...”

The need for criminal justice reform

The existence of these barriers and the fact that many function much more stringently on poor persons (disproportionately people of color) is powerful evidence of the need to reform the criminal justice system. The Feingold/Levin and Jackson death penalty moratorium bills and the Leahy/Delahunt Innocence Protection Act all address the need to develop mechanisms that will make it easier for wrongly-convicted persons to demonstrate their innocence and to reduce the likelihood of wrongful convictions.

Facilitating DNA testing, while important, is not a cure for all that ails the criminal justice system. The Feingold/Levin moratorium bill explicitly recognizes the need to examine questions of fairness, justice, equality, and due process in the administration of the death penalty. The results of such a study likely would improve the administration of justice in non-capital cases.

A close examination of the criminal justice system could have another profound consequence. If a study concluded that the criminal justice system, regardless of reforms, could never operate in a one hundred percent just and fair manner, might this change the minds of some thoughtful people who now support the death penalty?
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