NCPA - National Center for Policy Analysis

Habeas Corpus Delays Death Penalty Cases

February 16, 2000

Despite Supreme Court decisions upholding the constitutionality of the death penalty, and a congressional mandate to speed up the appeals process in capital cases, the federal courts continue to obstruct the death penalty, says attorney Andrew Peyton Thomas.

  • Over the last 20 years, the average time a condemned prisoner has spent on death row has almost tripled, to over 11 years.
  • Capital appeals in the federal courts account for a little more than half of this delay.
  • Due to these delays, convicted murders executed in 1998 spent only 90 days less on death row than did killers executed in 1997.

In 1996, Congress sought to unclog the courts by passing the Anti-Terrorism and Effective Death Penalty Act. The law, signed by President Clinton, set firm deadlines for inmates to file their habeas corpus petitions -- petitions under which federal judges review state death sentences. The act also established deadlines for federal judges to rule on these petitions.

However, in order for a state to "opt in" and avail itself of these habeas deadlines, the state must be certified as having provided "competent" counsel for indigent prisoners.

Unfortunately, says Thomas, Congress left the job of determining whether states have met this ambiguous standard to federal judges. They have interpreted the term "competent" so narrowly that states having trouble even finding, much less employing, attorneys who meet the courts' standards.

As a result, not a single state has been certified as complying the with the act.

Source: Andrew Peyton Thomas, "Completing the War on Crime," Weekly Standard, January 24, 2000.


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