THE ATLANTA JOURNAL and THE ATLANTA CONSTITUTION
November 1, 1991
Editorial, Page A/13
(By Alan Ellis)

Alan Ellis urges defeat of a Senate bill which would undermine the protection of the writ of habeas corpus. Mr. Ellis is past president of the National Association of Criminal Defense Lawyers.

Washington – Suppose you are convicted of a crime you did not commit. Couldn’t happen? Don’t believe it. Conservative estimates are that at least 10,000 Americans are wrongfully imprisoned for crimes they did not commit.

Say this did happen and that the evidence against you came from a confession the police forced from you. If you think this couldn’t happen, remember Rodney King of Los Angeles.

Up to now, if you are in prison, you have had the protection of the writ of habeas corpus – the centuries-old legal 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.

If President Bush has his way in the new crime legislation pending before Congress, you won’t have this protection any longer.

The Senate, at the urging of the Bush administration, has already passed a crime bill that would effectively repeal habeas corpus. Various procedural roadblocks are created by the bill including, for the first time, a prohibition against federal courts entertaining a prisoner’s constitutional claim that had already been “fully and fairly” heard by a state court.

The “full and fair” standard requires only that the state court hold a procedurally correct hearing. The hearing could be deemed “full and fair” only on the basis of procedure, even if it ended up overlooking or failing to consider constitutional violations.

The Senate bill has been condemned by a bipartisan coalition of judicial representatives.

Fortunately, a bill approved by the U.S. House on Oct. 22 takes a more restrained approach. It would also sharply limit habeas corpus and streamline death-row appeals. But it does not include the Senate’s “full and fair” language.

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

It is not surprising that federal courts find such trials constitutionally flawed 40 percent of the time, through habeas corpus. Yet the Senate bill leaves states free to continue these practices while creating even more procedural obstacles to cleaning up these botched trials on appeal.

Habeas corpus is not some legal technicality. It is the last protection that Americans have against wrongful imprisonment – or even execution. Hacking away at precious freedoms such as these will not fight crime.