POLITICS OCTOBER 4, 1993
The trial of Cornelius Singleton, who was executed in Alabama last November for killing a nun in a cemetery by smothering her with rocks, was hardly a model of due process. After begging to be taken off the case, the court-appointed lawyer refused to meet with his client, failed to object when the prosecutor struck all blacks from the jury pool and neglected to tell the jury that Singleton was mentally retarded. He then forged Singleton's name on a petition for habeas corpus; he was later disbarred. Singleton would not have been eligible for the death penalty if he had been properly defended; but six Supreme Court justices agreed last year that he should be executed anyway because of a 1991 decision that prohibits federal courts from reviewing more than one habeas corpus petition from each prisoner unless there is serious new evidence of actual innocence. "It was clear to everyone that the guy got screwed," said a conservative clerk. "What allowed all of us to sleep soundly that night was the knowledge that he was basically guilty."
The Singleton case epitomizes the law-and-order culture of the Rehnquist Court, where liberal justices object that constitutional rights are being violated with impunity and conservative justices counter, according to the clerk: "He's a bad apple who's had his claims adjudicated up the wazoo; let's fry him." (A less visceral response is that endless delays threaten federalism.) Since the Civil War, the writ of habeas corpus has been an unambiguous guarantee that any prisoner convicted in state court can have the constitutionality of his conviction, or his sentence, reviewed in federal court. But over the past fifteen years, Chief Justice William Rehnquist has transformed habeas corpus into a thicket of obscure and time-consuming procedures that prevent federal judges from correcting constitutional errors unless they cast serious doubt on the defendant's guilt. Rehnquist's innovations, most of them spun out of thin air, represent his most radical vision: an abandonment of the ideal of a fair trial in favor of a cruder search for something near the truth. Recognizing the problem, Senator Joseph Biden set out to resurrect habeas corpus as part of the Omnibus Crime Bill this fall. But by splitting the difference between habeas supporters and opponents, Biden has failed to reverse much of Rehnquist's legacy.
The centerpiece of the Biden compromise is a high-stakes trade-off: one bite at the apple in exchange for better lawyers. A 1989 study by the American Bar Association found that underpaid, often wildly incompetent, court-appointed lawyers are responsible for the fact that federal courts now find constitutional errors in about 40 percent of the capital habeas cases they review. (See "Habeas Corpse," TNR, July 15 & 22, 1991.) Under the Biden proposal, prisoners will be limited to a single habeas petition--unless evidence of actual innocence emerges--and they will have to file it within six months. (The statute of limitations is unprecedented: since the seventeenth century, courts have said that the right of freedom from illegal restraint never lapses.) In return, states will have to provide defense lawyers at every stage: two at trial, one on appeal and one after conviction.
Last year, Senate Democrats called for the creation of independent boards in each state, which would assign lawyers to individual defendants. In response to pressure from state prosecutors, the Biden bill keeps the assignment power in the hands of elected state judges (who are themselves under heavy pressure to rack up executions); but it requires them to choose from lists of lawyers approved by the defense bar. The bill does little, however, about the underlying problem of inadequate funding. Few competent local lawyers are willing to take on capital defendants for $20 an hour, the going rate in death-belt states like Alabama. By encouraging courts to penalize states that fail to set reasonable rates, the Biden bill could be improved.
On the broader question of restoring access to the federal courts, the Biden bill fudges again. Rehnquist's ultimate goal has been to eviscerate habeas corpus by requiring federal courts to defer to state courts if their legal conclusions are "reasonable," rather than making an independent judgment about whether the conclusions are correct. Congress and the Supreme Court have repeatedly refused to enact Rehnquist's proposals. In a 1991 case, however, Clarence Thomas, Antonin Scalia and Rehnquist not only endorsed the relaxed standard of review; they denied that Congress and the Court had repudiated it. (Sandra Day O'Connor exposed their selective quotations from cases which, in fact, said the opposite of what they claimed.) Six justices have now rejected Rehnquist's proposal; the Biden bill prudently rejects it as well.
By manipulating another doctrine, however, Rehnquist has achieved covertly what he was unable to achieve openly. A 1989 case, Teague v. Lane, said that federal courts can't consider habeas corpus claims based on "new rules of law" that were not in effect at the time of conviction. By itself, this principle isn't crazy: if dramatic shifts in the law were routinely applied retroactively, federal courts might hesitate to announce new rules, for fear of upsetting the whole criminal justice system. In later cases, however, Rehnquist defined "new rules of law" in an absurdly broad way: he said that as long as the state court's misinterpretation of the Constitution wasn't patently unreasonable, federal courts can't correct it without creating a "new rule of law." This means that in every case where reasonable judges can disagree--which is almost every case--federal courts are powerless to correct constitutional errors. Instead of candidly overturning the Warren Court's expansion of constitutional rights, in short, Rehnquist has surreptitiously made the rights unenforceable.
Senate Democrats agreed last year to resurrect the traditional definition of new rules of law: "clear breaks in existing precedent." Cowed by the opposition of the prosecutors, however, the Biden negotiators came up with a compromise: they would define a new rule tautologically, as "a rule that changes the constitutional standards." Both sides accepted the obfuscation because no one is sure exactly what it means, or whether the Court will interpret it more restrictively than the current law. But it would be hard to blame the conservative justices for concluding that Congress is not really serious about resurrecting habeas corpus, as long as it refuses to make its intentions clear.
Last April, Rehnquist delivered a final blow. For decades, the Court has said that a defendant whose constitutional rights are violated is entitled to relief unless the state proves beyond a reasonable doubt that the error was "harmless," that it had no effect on the outcome of the trial. In the 5-4 Brecht case, however, Rehnquist announced that federal courts now have to shrug off constitutional violations unless the defendant can prove that the errors "had a substantial and injurious effect" on the jury's verdict. This is basically impossible to prove, which means that many constitutional rights are now impossible to enforce. The Biden bill, in a half-hearted response, says that the state, rather than the defendant, has the burden of proof; but it fails to require that all constitutional errors that are not harmless must be corrected.
Many principled conservatives support capital punishment and forthrightly oppose the Warren Court, but recognize the critical importance of habeas corpus in protecting the constitutional rights that remain. By reducing habeas corpus to a thin promise that innocent people will not be executed, by contrast, the Rehnquist Court has obscured its traditional purpose, which is to ensure that innocent and guilty people are not tried or sentenced in ways that violate the Constitution. The Biden compromise may be the best that can be expected from the current Congress; and it may represent a slight improvement over the status quo. But liberals will no longer be able to accuse the Court of judicial activism once Congress has endorsed so much of what Rehnquist created.