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By Brian Stull, Staff Attorney, ACLU Capital Punishment Project

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 Boumediene 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.

Originally posted to ACLU on Wed Jun 18, 2008 at 12:39 PM PDT.

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