The drive to punishment is making us forget that prisoners have a right to be heard.
The plea was straightforward, Chris O'Bryant's court-appointed lawyer told him: Take a life sentence on each of two counts and get out in 25 years, maybe sooner.
O'Bryant had wanted to go to trial and claim voluntary intoxication—after all, he didn't remember robbing anyone or shooting at a police officer. He hadn't even hurt anybody. But his lawyer told him there was no such defense and urged him to plead guilty instead. O'Bryant, only 23 at the time, trusted his lawyer and did as he was advised.
The problem was, the lawyer was dead wrong: there was such a defense. Even worse, the lawyer had misunderstood the terms of the plea, which in fact put O'Bryant in prison for life without the possibility of parole. And because of a 1996 law limiting his right to get these errors addressed through a writ of habeas corpus, there's nothing he can do about it.
The Great Writ
A writ of habeas corpus is an extraordinary legal remedy available to a person in government custody. The “writ” itself is a court order requiring the state (or federal government) to prove that it has a legal right to hold you in jail or in prison. When the government is served with a writ of habeas corpus, it must prove that your federal constitutional rights have not been violated. If the proof is not there, the court may order a new trial or sentencing, or even release you outright.
Habeas corpus has been a touchstone of Anglo-American jurisprudence for nearly a millennium. It is protected explicitly in the Constitution, and the Supreme Court has called it “the fundamental instrument for safeguarding individual freedom against arbitrary and lawless state action.”
It is also a universal human right. It appears in, among other places, the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights, the European Convention on Human Rights, and the American Convention on Human Rights. In short, it is a constitutional right, enshrined in international law, that offers a last line of defense for an imprisoned individual against the indifference of or abuse by the State.
But why should we care whether someone like Chris O'Bryant is able to challenge the legality of his sentence? After all, he doesn't deny that he shot at a cop. Isn't habeas corpus really a concern for, say, those Middle Eastern men sitting in cramped cages at Guantánamo Bay, unable to challenge their detention in any civilian court? Surely it is, and since soon after September 11 there has been no shortage of coverage of the clashes between the three branches of the federal government over this fundamental question.
But obscured by these headlines is a bigger story: the decade-long rollback of the right to petition for habeas corpus aimed at the more than 2 million people held in U.S. federal and state prisons. Tens of thousands of prisoners try to file habeas petitions each year: some of them claim innocence; most claim some form of constitutional error in their arrest or trial—but all of them are entitled not to be imprisoned illegally. By preventing them from exercising this basic human (and constitutional) right, we undercut the integrity of the criminal process, as well as the principles on which this nation was founded. And that's a threat you don't need to sympathize with a prisoner to comprehend.
The End of “Prisoner-Coddling”
On April 24, 1996, President Clinton signed into law the Anti-Terrorism and Effective Death Penalty Act. AEDPA, as it is known, was triggered by the Oklahoma City bombing a year earlier. It was enacted in part to speed up the death penalty appeals process (that is, to execute more people, faster). But another central purpose of AEDPA—one which the bill's backers had sought for a long time—was to restrict dramatically the availability of habeas corpus to all prisoners.
“Habeas corpus reform … is the Holy Grail [of AEDPA],” said Representative Henry Hyde in the days before the bill became law. “We have pursued that for 14 years.”
The groundwork Hyde was referring to was laid in the ‘70s and ‘80s, as an increasingly conservative Supreme Court began to retreat from rulings of the previous two decades that had made it easier for prisoners to file habeas petitions. (That availability had itself been a long time coming; until the 20th century, convicted prisoners were largely prohibited from petitioning for habeas corpus.)
Around the same time, the number of habeas petitions filed increased dramatically—100 percent between 1987 and 1996—and public pressure to stem the flow intensified. It did not seem to matter that the increase was due primarily to the ballooning national prison population—in fact, the rate of habeas filings per thousand inmates decreased during the same period. Nor did it matter that many inmates were raising potentially meritorious claims of innocence or major trial error. Habeas had become a vague yet powerful symbol of prisoner-coddling, and politicians were eager to find a way to attack it.
AEDPA, passed by overwhelming majorities in both houses of Congress, codified the retrenchment that had occurred during the '70s and '80s. Among the roadblocks it set up were a one-year filing deadline and a near-total prohibition against filing more than one petition, even if new evidence comes to light later on.
But hardest to overcome was the “unreasonable” requirement: in order for a federal court to overturn a state court's ruling on a prisoner's federal constitutional claim, it must find that ruling not simply wrong, but “unreasonably wrong.” Of course state courts can, and not infrequently do, misapply federal law. But under AEDPA, unless the error is unreasonable—and it is rarely found to be—the federal court must go along with it.
Even though AEDPA drastically curtailed crucial, hard won constitutional and international human rights that have existed, in some form, for centuries, it was surprisingly easy for politicians to sell to the average voter. “The people back home won't understand what you've done, but they will understand that you've made it harder for people to get out of prison, and that's a good thing,” says Bryan Stevenson, executive director of Equal Justice Initiative in Montgomery, Alabama, and a professor at New York University School of Law.
Stevenson, who has spent his career defending death-row inmates throughout the South, was among the many critics who argued that AEDPA was the wrong approach. “Instead of saying, ‘We're convicting a lot of people illegally, we're convicting a lot of innocent people, let's fix that,' what I think most politicians have said is, ‘Let's just turn off this complaint valve. We shut this down, then it's just not going to be a problem for us,'” Stevenson says.
AEDPA may have made politicians look good, but its longer-term effects have become a problem for nearly everyone else.
For starters, the law was so confusingly drafted that much of the habeas litigation of the past decade has revolved around making sense of what it means. And as a result of the ever-growing prison population and the scramble to meet the new filing deadline, the rate of habeas petitions actually increased after AEPDA's passage—from 13 filings per 1,000 inmates in 1995 to 17 per 1,000 in 2000. This irony was not lost on the law's supporters, who countered with a proposal for a stronger dose of the same bad medicine: the Streamlined Procedures Act (SPA).
Introduced in May 2005, the SPA is ostensibly aimed, once again, at speeding up executions. But, like its predecessor AEDPA, it would set new roadblocks in the way of any prisoner seeking to challenge his or her conviction on any grounds.
So far, the bill has run into intense opposition. But it is not yet dead, and there's no guarantee that the new Democratic Congress will defeat it.
“It's not as if the Democrats are against restricting habeas and the Republicans are in favor of it,” says Stevenson, pointing out that it was Bill Clinton who signed AEDPA in an effort to strengthen his own tough-on-crime credentials.
Despite its historic importance as both a civil and a human right, habeas corpus has never been a get-out-of-jail-free card. Federal courts grant the writ in a minuscule number of the 20,000 to 25,000 petitions filed each year, statistics that lead some prisoners and prisoner advocates to downplay the importance of AEDPA and related legislation.
“If you look at the number of successful habeas petitions, it's like winning the lottery,” says Paul Wright, who served 17 years for murder in Washington State, during which time he became a respected jailhouse lawyer and started Prison Legal News, an inmate-written legal newsletter he still edits today.
To Wright, the main concern is what happens before a habeas petition gets filed—that is, in the state courts of appeals. These courts—often populated by elected judges who run under tough-on-crime platforms—cursorily deny the vast majority of criminal appeals that come before them. Combine that problem with the extreme deference AEDPA requires of federal courts reviewing state-court rulings, and habeas corpus petitions often seem to be no more than a formality.
As a result, Wright thinks that the “Great Writ” looks a lot more powerful than it is. “It's like saying you have a spoiler on the back of your car. It looks nice, but what does it actually do?”
Bryan Stevenson agrees that there have always been obstacles to the granting of habeas—such as getting lawyers, developing the evidence, getting someone, anyone, to care. The difference, he says, is that those obstacles “weren't the law itself.” He adds, “Your opportunity, if you were innocent, to get out of jail was still dramatically greater throughout most of our history than it is today.”
Prying open the courtroom doors
Even if you're not innocent, but you want to challenge the constitutionality of your trial, your plea, or your sentencing, habeas corpus is essentially your only hope. That's Chris O'Bryant's problem: even though his trial lawyer later admitted his errors, O'Bryant missed the one-year deadline for filing his habeas petition—thanks to being hopped up on a regimen of anti-psychotic drugs prison officials prescribed shortly after he arrived.
Today O'Bryant is off medications and understands the law much better—so much so that he has become a jailhouse lawyer, assisting other prisoners with their legal claims. Like him, many of them are time-barred under AEDPA from filing their own habeas corpus petitions, regardless of the constitutional issues they may raise. O'Bryant is likely to see many more of these men: now 35 years old, he will live out his days in a cell at the Columbia Correctional Institution in Lake City, Florida.
Jesse Wegman is a writer and lawyer living in New York.
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