With excited editorials in the New York Times and Washington Post announcing that a bill before the Senate Judiciary Committee will “gut the legal means by which prisoners prove their innocence,” it’s worth asking the following trivia question:
Q. Under the Streamlined Procedures Act of 2005, what is the minimum number of levels of judicial review a criminal defendant sentenced to death will have?
A. Seven.
Federal district court judges (and, in the case of the Third and Ninth Circuits, appellate judges) who oppose the death penalty have been misusing habeas corpus review to delay or obstruct capital sentences. Ronald Eisenberg, a Philadelphia prosecutor, tells some chilling tales of judicial abuse in House testimony; prosecutor Kent Cattani testifies similarly about Arizona and the Ninth Circuit before the Senate. (Other Senate testimony; other House testimony). It’s unfortunately politically unfeasible for there to be impeachment of judges who commit judicial nullification and regularly disregard the law. In such a world, it’s only natural that Congress would seek to limit their discretion.
The blogosphere is generally opposed: e.g., comments at Berman, Jul. 1 and Jul. 13.
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