Known for 300 years as “the great writ,” habeas corpus embodies one of the fundamental principles of Anglo-American law: independent courts can review the detention of citizens. It’s Latin for “you have the body”; in the tumultuous 17th century, bold British judges used it to free enemies of the crown locked away in the Tower without benefit of trial. Americans have greatly expanded this right. Federal judges can review convictions in state courts–and if necessary reverse them because of a serious problem, such as the absence of evidence. In recent years, the writ has been invoked most dramatically by death-row inmates; since 1976, 50 prisoners have been freed before they could be put to death.
Not everyone who asks for habeas corpus review is innocent, of course–and therein lies the problem. Thousands of petitions fill the federal courts and, in the process, stay the executioner’s hand. Habeas “reform,” at least in capital-punishment cases, became an easy target for law-and-order politicians and for prosecutors frustrated by delays. “Justice delayed is justice denied,” says Georgia’s attorney general, Michael Bowers. Last fall Sen. Orrin Hatch of Utah attached a severe limit on death-row appeals to President Clinton’s antiterrorism bill. Last week Clinton signed it into law.
As in so much other legislation, the Devil is in the details. Under both the old and the new laws, a convict cannot file a habeas petition in federal court until he finishes all his state-court appeals. Under the old law, there was no time limit on the federal appeal; under the new law there are two. Under plan A, if a state opts to provide competent and adequately compensated lawyers to the inmate, the habeas appeal must be filed within six months. Under plan B, if the state chooses not to help the prisoner get a lawyer, the habeas appeal must be filed within one year whether a lawyer is available or not. The problem is that even under the old law there were few lawyers willing to help. And to make matters worse, in the last year Congress has eliminated funding for law offices around the country that specialized in representing indigent death-row clients. “Most lawyers never wanted to get involved in these cases,” says George Kendall of the NAACP Legal Defense Fund. “With the new time limits, even fewer will, but that won’t stop the clock from running.”
The law also imposes new restrictions on federal judges hearing the appeals. They are required to issue their decisions within strict time limits. And they must give greater deference to state-court rulings.
The poor quality of defense work in homicide cases is an open secret. Dream Teams of lawyers are reserved for wealthy celebrity clients who never wind up on death row. Capital punishment may be a debatable issue. But until last week, ensuring that states don’t execute the wrong man had not been. The old Latin You have the body is now a macabre possibility.
