| THE STRANGE PART PLAYED BY APPEALS (a timeline)
Before WW2, few DP cases were appealed to the Federal courts. Early Supreme Court rulings (based on the Scottsboro case in the 1930s) held that defendants must have a competent attorney at trial, and that racial exclusion from juries (all-white juries) is not allowed. Despite these rulings, defendants in capital cases rarely have competent attorneys at trial and prosecutors still find ways to exclude minorities from juries, and all-white juries are still common in DP cases. In the 1950s, there were many test cases pursued by the NAACP Legal Defense Fund and others, but the courts routinely refused to intervene in capital cases. There were also a number of individual appeals (like Caryl Chessman in California). In the 1960s, the NAACP-LDF began the Moratorium Campaign to stop executions by forcing the Federal courts to confront the reality of the DP (discrimination, sham trials, etc.). Furman was largely the result of this. When the DP was revived in the 1970s, the Supreme Court promised to ensure fairness by using the appeals process to oversee the new reformed DP. The writ of habeas corpus, which provided prisoners virtually automatic access to the Federal courts, was the key device for this oversight. By the early 1980s, the system was locked into a morass of appeals. The states did not really fix their systems to provide fair trials and the Federal courts were unwilling to mandate fundamental (and very expensive!) changes. As a result most cases were "endlessly" delayed in the extremely-complicated appeals process. In 1988, Chief Justice Rehnquist appointed the Powell Committee (all Southern conservatives) to "reform" the appeals process (speed up appeals). The Powell Committee recommendations included limiting appeals to one round (�one bite at the apple�) with time limits for judges to rule and appointed attorneys for the appeals process. Changes required "opt in" legislation by each state. The Powell Committee said nothing at all about the problem of trial representation � which was (and still is) the key problem. Also in 1988, the American Bar Association (partly in response to bias in the makeup of the Powell Committee) appointed a more balanced committee to study the appeals process. The ABA Committee also recommended one round of appeals but with longer time limits for judges and a requirement that competent attorneys be provided at both the trial and appeals stages of the process. Both committee reports were published in 1989 and Congress began to examine the issues raised by the reports. The result was complete deadlock - Democrats supported the ABA recommendations while Republicans supported the Powell Committee recommendations - and nothing changed. In 1992, Bill Clinton was elected president and in 1994 a Republican-dominated Congress was elected, and the appeals issue was reopened in Congress. Clinton wanted an anti-terrorism act passed, and the Republicans wanted the Powell recommendations enacted. They eventually developed a compromised, and the result was the Anti-Terrorism and Effective DP Act of 1996. This act adopted most of the Powell recommendations while ignoring the problem of incompetent trial attorneys and the resulting sham trials. The conservative majority on the Supreme Court (led by Reagan-Bush apointees) "fast-tracked" the act and approved it later in 1996 in Felker v. Turpin. States immediately began the "opt-in" process to speed up appeals and executions. In an unanticipated move, though, DP opponents immediately targeted the opt-in process, and appeals litigation over this and other problems stopped implementation of the changes in most states. In 1997, the American Bar Association issued a call for a moratorium on executions until problems with the system are fixed. The ABA cited discrimination, mistakes, inadequate representation at trial, and the failure to make the appeals process fair and effective as continuing problems with the DP. Meanwhile, in the 1990s an increasing number of �mistakes� � innocent people who had been sentenced to death � were being discovered, partly through the use of new DNA testing. The discovery of relatively large numbers of mistakes, raising the issue of the high risk of executing innocent people, slowed the rush toward expedited executions. By 2000, death sentences were dropping and executions were decreasing and this trend has continued since then. From the perspective of 2009, it is unclear what will happen next with the DP. Technically, the streamlining of the appeals process should have led to rapidly increasing executions. Countering that effect was the fact that for the first time many of the DP states facing this prospect began to re-examine their systems, and the result has begun to resemble what happened in Illinois - scandalous publicity about the shoddy way the legal systems work followed by a virtual collapse of the system - and New Jersey, where the governor and legislature cooperated in outright abolishing the death penalty . Copyright � 2009 Ernie Thomson. All rights reserved. email: [email protected] |