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Proponents of the law that required federal court review of the Terri Schiavo case said that all possible protections should be available when a human life is at stake. Said Senator Mel Martinez, R-Fla., “We will simply be allowing the federal judge to give one last review, one last look in a case that has so many questions, that has so many anxieties, and that will provide us the kind of assurance before the ultimate fate of this woman is decided to know that we did all we could do and that every last measure of review was given her, just like it would have been given to a death row inmate convicted and sentenced to die.” However, death row inmates are not given “every last measure of [federal] review.” In 1996, Congress passed the Anti-Terrorism and Effective Death Penalty Act (AEDPA), which severely restricts federal court power to review constitutional claims by inmates sentenced to death by state courts. Federal review, Congress said, would constitute disrespect for state court decisions, even when the claim involves the federal, not state, Constitution. Opposing views on state courts In the Schiavo case, apparently, the theory was just the opposite. Congress created a particular form of review just for her case, without apparent concern about disrespect for state courts. Despite numerous state court hearings, the law required the federal courts to evaluate her case anew, without deferring to any state court rulings. In a death row inmate’s case, a federal court must defer to the state courts and may overrule them only rarely-when it finds a state court judgment was not only wrong, but unreasonably wrong. This is a dramatic restriction on federal courts’ ability to protect an inmate’s federal constitutional rights. There is substantial risk of error in these cases. A Columbia University study found that, before AEDPA, federal courts identified serious constitutional violations in an astounding two-thirds of cases in which state courts had upheld death sentences. Recently, more than 250 prisoners, including more than 100 who had been condemned to death, have been exonerated. Some of the death row inmates, who had come within hours of being executed, were freed not because the courts protected them, but because journalists, law and journalism students, and others unconnected with the judicial system discovered evidence of their innocence. A person condemned to death faces other obstacles to federal court review that the Schiavo law specifically rejected when it stated that it does not matter whether “a claim has previously been raised, considered, or decided in State court proceedings.” In capital cases, the law prevents federal courts from considering any issue not raised and decided in state court, no matter how important the claim or why it was not presented. The most common reason is the deficient quality of lawyers appointed to defend poor people accused of capital crimes. They have been represented by lawyers who were intoxicated, slept during trial and, no matter how well meaning, lacked the knowledge, skills and resources to defend a capital case. If a lawyer fails to raise an issue in the state courts, a federal court is prevented from ruling on it, no matter how valid it may be. Every day, people are paying with their lives because of these restrictions. For example, Gary Graham, a Texas death row inmate, presented evidence that prosecutors had suppressed evidence of his innocence. The Texas courts refused to hear the issue on technical procedural grounds, and the federal courts were unable to intervene. President Bush said of the Schiavo case, “it is wisest to always err on the side of life,” but then-Governor Bush allowed Graham’s execution even though no court had determined the merits of his constitutional issue. The Constitution Project’s bipartisan, blue-ribbon death penalty committee, which includes capital punishment supporters and opponents, urges eliminating obstacles to meaningful judicial review in capital cases and overhauling the appointment system for capital defense lawyers. In 1997, the American Bar Association, also neutral on capital punishment, responded to AEDPA’s passage and deficient defense lawyering by calling for a nationwide moratorium on its use. Full federal court review The Schiavo law supporters appeared to agree that in life-or-death cases, there should be no obstacles to full federal court review. Senator Rick Santorum, R-Pa., compared the Schiavo bill to “a horrific death penalty case in California,” and urged his colleagues “to understand that [as in that case,] there is a proper role for Federal courts to look to make sure that due process was followed.” The founders gave federal judges lifetime tenure to protect them from political pressures, so they could decide cases in good faith and according to the law, no matter what public opinion demanded. The exonerations of people in prison and on death row have taught Americans a hard lesson-that our criminal justice system is fallible, and that a state court may convict the wrong person. This is especially true in capital cases, which engender great passions and place enormous pressures on judges and juries to convict and impose a death sentence. Congress should pass legislation providing for the same full federal court review of life and death decisions in capital cases that it provided for a single person in the Schiavo law. Stephen B. Bright is the H. Lee Sarokin Director of the Southern Center for Human Rights, and teaches at Yale Law School. Virginia E. Sloan, a member of the Center’s board of directors, is the president of the Constitution Project and was a lawyer with the U.S. House of Representatives Judiciary Committee from 1980 to 1995.

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