San Francisco Chronicle
Tuesday, October 29, 1991
By: Alan Ellis

Suppose you’re convicted for a crime you didn’t commit. Couldn’t happen? Don’t believe it.

The evidence against you consisted mainly of the confession that the police had beaten out of you. Think it doesn’t happen? Ask Rodney King.

Up to now you had the full protection of the writ of habeas corpus – the centuries old device by which people wrongfully imprisoned or sentenced to death could raise violations of their constitutional rights or present new evidence that could exonerate them or prove a police frame-up.

If President Bush has his way, you won’t have the full measure of this protection any longer. The Senate at the urging of the Bush administration has passed a crime bill that would effectively repeal habeas corpus.

For the first time, the bill would create various procedural roadblocks, including a prohibition against federal courts entertaining a prisoner’s constitutional claim that had already been “fully and fairly” heard by a state court. The problem is with the “full and fair” standard, which requires proof that the state court has overlooked serious constitutional violations.

In Illinois recently, four Death Row inmates were saved from an unconstitutional execution after filing federal habeas corpus petitions. They would have been put to death under the Senate bill’s provisions.

The pending measure has been condemned by three former U.S. attorneys general, scores of current and former prosecutors, and the entire federal judiciary. Fortunately, a crime bill approved by the House last week takes a more restrained approach.

It would also sharply limit habeas corpus petitions and streamline Death Row appeals – but without the controversial “full and fair standard” for state court reviews.

Far more constructively, it mandates competent counsel throughout all stages of death penalty cases, recognizing that inadequate legal representation is a principal cause of litigation and delay, particularly in the death penalty appeal process.

In Alabama, for example, a lawyer was imprisoned with his client for being drunk during trial. After he sobered up, the trial resumed. Two days later, the jury imposed the death penalty. In Kentucky, one-quarter of the people sentenced to death had lawyers who were subsequently suspended, disbarred or imprisoned.

It is through habeas corpus petitions that federal courts are able to discover when trials have been botched up. Habeas corpus is not some legal technicality. It is a protection of last resort that citizens have against wrongful imprisonment – even execution.

Hacking away at precious freedoms won’t fight crime, and it’s a tragically hypocritical message to send to the world’s emerging democracies who are laboring to follow my example.