Stephen Bright, attorney and death penalty expert, describes the 1990s as a time of “terrible problems” for capital trial lawyers.

In 1996, two Congressional decisions drastically changed the legal landscape. Early in the year, legislators cut all federal funding for death penalty resource centers and then, several months later, issued a bill severely limiting federal appeal options for death row inmates.

“It was a devastating one/two blow for the defense of capital clients,” said Bright. Congress shortened the time in which death row inmates could file their federal appeals right after taking away the attorneys who could assist with those appeals, he said.

The $18 million federal budget cut meant the complete demise of most death penalty resource centers, said Richard Dieter of the Death Penalty Information Center. In many states, these centers “did the key death penalty legal work.”

They acted as a resource for outside lawyers taking capital cases and often, because of shortages, tried cases themselves, he said. After cuts, the national total of death penalty centers dropped from 20 to about seven.

“Some centers were able to survive on private or state funding,” said Dieter, “but all are smaller than they used to be.”

Bright reports that in other states, such as Texas, the federally funded program has completely disappeared. Texas, he said, “has the worst public legal system of any state. It just has the appearance of a process. There is no public defender system. No capital trial unit. No post-conviction unit.”

On April 24, 1996, Congress passed the Anti-Terrorism and Effective Death Penalty Act. The bill severely limits the role of federal review in a capital case by restricting when an inmate can obtain a federal hearing and when a federal court may set aside state-imposed convictions or sentences. The bill also imposed a one-year deadline for the filing of a habeas corpus petition, which is submitted when valid claims of constitutional error can be made.

The Death Penalty Act encumbered the habeas petition with new procedural rules, said Dieter, and inmates can apply only once. They “now have a time limit, number limit and content limit.”

Proponents of the act say it has streamlined the death penalty process, which typically drags on for years. Opponents say it has increased the likelihood that innocent people will be executed. Law professor Lawrence Marshall of Northwestern University believes the bill has “fundamentally changed the role of the federal court in reviewing a death penalty case.”

“Throughout the ’50s, ’60s, ’70s and ’80s, the courts operated in a manner that recognized that sometimes the political pressures at the state level are such that constitutional rights are not protected.”

The state judiciary is elected, Marshall pointed out and therefore can be vulnerable, “subconsciously or unconsciously to the politics around a crime.”

In some instances, Marshall said, the habeas proceeding helped specific individuals because it sent a message that state courts were not the final judge. He believes that the possibility of federal review acted as an “effective deterrent” against “judiciary sloppiness or politically-based judgments.”

“If the homework’s being reviewed, that’s a strong incentive for doing it carefully.”

-- Claire Schaeffer-Duffy

National Catholic Reporter, October 5, 2001

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