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If the chief judges of state and federal appellate courts, the organized national bar and a host of others say that a bill that would strip the federal courts of nearly all authority to review state convictions and sentences is a mistake, you’d think the bill’s proponents might back down. Think again. Just over a week ago — and only a week after a second cautionary letter from the Judicial Conference of the United States — the Senate Judiciary Committee was prepared to vote on S. 1088, the so-called Streamlined Procedures Act of 2005, making the most sweeping changes in federal habeas review in a decade. But lack of a quorum and strong objections by some Democratic senators forced a delay in the chairman’s call to vote out the bill and deal with its problems later. The bill’s sponsor, Sen. Jon Kyl, R-Ariz., and supporters are expected to try again. But this time, a substitute measure — offered by judiciary Chairman Arlen Specter, R-Pa. — will be on the table, and Democratic committee members have pressed successfully for a public hearing on it on Oct. 26. SPECTER’S SUBSTITUTE Specter, who had sought unsuccessfully to get a vote on his substitute at the meeting less than two weeks ago, said then that his version meets the concerns of the Judicial Conference. That’s news to the policy-making body of the federal judiciary. “Our people hadn’t seen it by then,” said Richard Carelli, a spokesman for the Administrative Office of the U.S. Courts. “I’m assuming we will have some reaction to it.” But the substitute amendment, by virtue of its very existence, fails to do the one thing that federal and state chief judges have urged the senators to do: conduct a study on whether there is any unwarranted delay in resolving habeas corpus petitions in the federal courts. The Judicial Conference recently sent the committee the results of a preliminary review of statistical data on the federal courts’ handling of noncapital and capital habeas cases filed by state prisoners. Based on that analysis, “The Conference does not believe that the data as a whole supports the need for a comprehensive overhaul of federal habeas jurisprudence,” wrote Leonidas R. Mecham, conference secretary and director of the Administrative Office of the U.S. Courts, the management arm of the federal judiciary. “We oppose the [Specter] substitute,” said Kyle O’Dowd, the legislative affairs director for the National Association of Criminal Defense Lawyers. “We don’t think it’s a reasonable legislative proposal. Senator [Russell] Feingold [D-Wis.] said this is a solution in search of a problem. There needs to be some systematic study of the issue before we even talk about legislation.” But the Specter proposal is “a good and necessary” bill, said Kent Scheidegger of the Criminal Justice Legal Foundation. The Antiterrorism and Effective Death Penalty Act of 1996 “didn’t accomplish what states wanted to see done,” he insisted. “There’s no confidence that is going to happen. The courts have had 10 years to implement AEDPA.” FAST-TRACK REFORM The debate has now boiled down essentially to two problems that Kyl believes justify a habeas overhaul: delay — both in handling state prisoners’ habeas corpus petitions and in carrying out death sentences — and a broken bargain under the 1996 AEDPA, which itself imposed sweeping limits on federal habeas review. AEDPA promises that if the states establish procedures for the appointment, compensation and payment of reasonable litigation expenses of competent counsel for indigent death row inmates in post-conviction cases, the states can take advantage of AEDPA’s expedited time frames for federal review of habeas petitions. The federal circuits decide whether a state qualifies for “opt-in” status. To date, only Arizona is an opt-in state. On the delay issue, the Judicial Conference recently reported to the judiciary committee that it reviewed statistical data compiled for fiscal year 2004 and found the following: District Courts: There were 18,432 noncapital habeas corpus petitions filed by state prisoners in U.S. district courts, and 6,774 in U.S. courts of appeals. The total number of terminations for 2004 showed that the federal courts are bringing to conclusion nearly as many noncapital habeas petitions from state prisoners as are filed annually. The median time from filing to disposition for those cases in the district courts has remained relatively constant since 1998, and in 2004 was six months. In the courts of appeals, the median time also remained relatively stable between 1998 and 2004, ranging from 10 to 12 months. “Thus, the statistics appear to indicate that the district and appellate courts are handling noncapital habeas corpus petitions originating from state prisoners expeditiously,” said Mecham. For capital habeas corpus petitions, the data showed that from 1998 to 2002, more cases were filed in district courts than were concluded. As a result, the number pending increased from 466 at the end of 1998 to 721 at the end of 2002. But in 2003 and 2004, the number terminated nearly equaled the number filed, so the growth in the pending caseload slowed and was 732 at the end of 2004. The median time from filing to disposition of state capital habeas cases was 13 months in 1998; 24.5 months in 2001; 20 months in 2003; and 25.3 months in 2004. Habeas scholar Ira Robbins of American University Washington College of Law said that he could only speculate on why the disposition time for state capital habeas nearly doubled in the district courts from 1998 to 2004. “In that six-year period, habeas corpus has gotten increasingly difficult,” he said. “While Congress may have intended to speed up the process, new statutes like AEDPA often tend to slow it down — especially when there is a long period of interpretative, or ‘shake-out,’ litigation, as there has been with AEDPA. “This is one of the arguments against the pending habeas legislation: Now that the interpretative period of AEDPA has matured and judges know how to work with it, it would only slow down the process to add yet another layer of habeas complexity,” he said. Circuit Courts: In the courts of appeals, the Judicial Conference reported that the number of terminations of state capital habeas corpus appeals kept pace with the number of filings between 1998 and 2000. But in 2001, the number filed was more than the number terminated, which increased the number of cases that are pending. From the end of 1998 to the end of 2004, pending state capital habeas cases rose from 185 to 284. The median time from filing to disposition of capital habeas appeals ranged from 10 to 13 months between 1998 and 2002. The median time increased to 15.5 months in 2001; dropped to 13 months in 2003; and rose to 15 months in 2004. Those appeals pending three years or more increased from five (2.7 percent of all pending state capital habeas cases) at the end of 1998 to 36 (12.7 percent) at the end of 2004. Without further information, the conference, said, “The judiciary is unable to draw a definitive conclusion” as to the causes for these increases or whether the time frames are unreasonable. BROKEN BARGAIN The debate over whether circuit courts have refused unfairly to certify states as “opt-in” states under AEDPA is mostly an anecdotal one. There appear to be no studies supporting either view. Thomas Dolgenos, chief of the Federal Litigation Unit of the Philadelphia District Attorney’s Office, said: “A fair number of states have tried but none has been able to meet the requirements to the satisfaction of the courts. The feeling around prosecutors I’ve spoken to about it is the system is sort of rigged. We’re not sure if we’re ever going to get compliance. A lot of states thought they should now be in compliance. They’ve taken steps but can’t convince the circuits of that.” But long-time capital litigator George Kendall, senior counsel to Holland & Knight, called the opt-in reason a “red herring.” “Most states tried to opt-in right after AEDPA in cases pending,” he said. “They wanted certification and hadn’t crossed their ‘t’s and dotted their ‘i’s. “In most other cases, the states don’t care to opt in. They don’t have to provide lawyers and don’t have to spend any money, because the general amendments to habeas in the 1996 act really cut it back. It’s not like states have been going back and back and courts are irresponsibly saying, ‘No, we’re not going to certify.’” American University’s Robbins, who tracks habeas corpus decisions for his habeas textbook, agreed, saying, “I think it is generally accepted wisdom that states have stopped trying to opt-in because AEDPA’s general habeas corpus reform provisions are already enormously state-favoring. As far as I know, there has been no major litigation on the opt-in question in a long time — at least not at the circuit court level.” SUBSTITUTE HABEAS The Specter substitute reduces the amount of jurisdiction-stripping in the original Kyl bill, said opponents and supporters, but is still not acceptable to most of the original opponents. On the opt-in issue, Specter adopts the Kyl approach that would give the U.S. attorney general the authority, and not the circuit courts, to determine whether a state qualifies as an opt-in state for the benefit of expedited review procedures in capital cases. But Specter would not, as Kyl would, eliminate all federal habeas review once a state has qualified. Both approaches would make the proposed review changes applicable to all cases pending at the time of enactment of the legislation but Specter eases the new time limits if they would have started for some cases on a date before enactment. For procedurally defaulted claims, both senators would require the habeas petitioner to show cause why the claim was not raised in state court and add a requirement that the petitioner show he or she was innocent of the underlying crime. Specter would provide some narrow protection for the attorney-client relationship when an indigent petitioner asks the court for funds to hire experts or investigators. He, like Kyl, still would prohibit ex parte communications with the judge on that request and require notice to the government and an opportunity to respond. Stephen Saltzburg of George Washington University Law School, who has been working on alternative proposals on behalf of the American Bar Association and the Constitution Project, said there should not be much federal review when a petitioner has gone through state procedures and the state courts did it right. “I understand the goals [Kyl and supporters] have,” he said. “But that doesn’t mean you have to basically cut off federal habeas completely. The problem is Arizona has a pretty good system, but a lot of other states don’t. In some jurisdictions, it’s a necessary protection.”

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