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The deceptively titled Streamlined Procedures Act of 2005 (SPA), now pending in Congress (S. 1088, H.R. 3035), would codify the wish list of radical habeas haters-whose appetite for “reform” of the writ remains unslaked even after enactment of the draconian Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). Neither streamlined nor truly procedural, the SPA threatens to make the dauntingly complicated area of post-conviction litigation more complex and dilatory, while depriving prisoners of the means to enforce their substantive constitutional rights. Derailing it will take more courage than legislators typically display on criminal justice matters. Indeed, the Senate version, offered by Senator Arlen Specter, R-Pa., and awaiting markup by the Senate Judiciary Committee, is almost as noxious as the earlier version, which is before the House. (In any case, it may eventually lose to the House bill in conference.) Only continued strong lobbying by opponents-who have included many former judges and prosecutors-can succeed in thwarting its passage this fall. Almost a decade ago, AEDPA severely cut back on habeas protections that decisions by the Supreme Court over the previous 20 years had already trimmed substantially. Among other things, AEDPA imposed a novel statute of limitations (ordinarily, one year from final judgment); abolished “same-claim” successive petitions; greatly restricted successors containing claims omitted from an earlier application (usually requiring that the underlying facts strongly demonstrate actual innocence); and barred relief for any claim adjudicated on the merits in state court unless such adjudication “resulted in a decision that was contrary to, or an unreasonable application of, clearly established Federal law, as determined by the Supreme Court . . . or . . . was based on an unreasonable determination of the facts.” Moreover, chapter 154 of AEDPA gave the benefit of even more favorable provisions in capital habeas cases to states that opted to put in place mechanisms for appointing and paying competent counsel to represent death-sentenced defendants in state post-conviction proceedings. Impossible standards for review The SPA goes even further toward rendering illusory federal protection of defendants’ rights. Overruling a long line of Supreme Court precedent, it removes jurisdiction from habeas courts to consider claims that a state court refused to hear on the ground of some procedural error committed by the prisoner or his lawyer-even if the lawyer’s inadequate assistance caused the default or the state court’s action was unreasonable. To overcome this global barrier to review, a petitioner would generally have to show that “the factual predicate for the claim could not have been discovered previously through the exercise of due diligence; and . . . the facts underlying the claim . . . would be sufficient to establish . . . that, but for constitutional error, no reasonable fact-finder would have found the applicant guilty of the underlying offense.” The proverbial camel could have navigated the needle’s eye more easily than a prisoner will be able to satisfy this provision. Other sections direct dismissal with prejudice of claims not exhausted in state court, where many defendants lack the aid of counsel in collaterally attacking their judgments, and severely restrict the right to amend habeas petitions. Again, the only escape hatch is the “mission impossible” innocence exception. Additional provisions would alter current tolling provisions, so as to trap unwary litigants into breaching the one-year statute of limitations, and impose rigid timetables on the processing of habeas appeals. Finally, the House bill zeroes in on capital cases in further jurisdiction-stripping sections. It bars federal courts from hearing almost all claims of sentencing error that a state court has found to be harmless, and-subject to the innocence “out”-all claims by death row inmates, if the U.S. attorney general certifies that a state’s system for furnishing counsel in post-conviction proceedings fulfills statutory standards. Significantly, existing law leaves the certification decision to the judiciary, not to a potentially biased executive official, and does not wholly deny the applicant a hearing in “opt-in” states. Fueled by baseless hostility toward prisoners and federal judges, the SPA threatens to put habeas courts out of the business of safeguarding constitutional rights. It would reverse the results of decisions granting relief for such violations as ineffective assistance of counsel and racial bias in jury selection and place innocent lives at risk. Ironically, too, it would not lessen delays: The courts will have to interpret and review challenges to its provisions. The bill deserves capital punishment and quick burial. Vivian Berger, an NLJ columnist, is a professor emerita at Columbia Law School.

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