A Georgia death row inmate’s fight to escape the electric chair is giving the Supreme Court a chance to review a law that would limit most state prisoners to one appeal in federal court.
Tough-on-crime politics and frustration with the speed of executions sparked Congress to pass the law and President Clinton to sign it. And similar sentiments may explain why the nation’s highest court put convicted murderer Ellis Wayne Felker’s appeal on a fast track.
Moving with rare speed last month, the court agreed to use Felker’s case to judge the validity of one part of the Anti-Terrorism and Effective Death Penalty Act of 1996.
The court will hear arguments Monday, and a decision is expected within a month.
At issue: Can Congress require that state prisoners who fail in their initial try at federal court help get a three-judge appellate court panel’s permission before filing another federal appeal?
State prisoners routinely turn to federal courts, arguing that their state court prosecutions violated a federal constitutional right.
The Constitution calls such an appeal a “petition for a writ of habeas corpus,” and filing one in federal court is a right as old as the republic. State prisoners have had the right since 1867 but in recent years the Supreme Court has whittled its scope.
The court’s five most conservative justices voted to review Felker’s case quickly while its four most liberal justices dissented and complained about “unseemly haste” - leading some commentators to predict a decision upholding the new law.
It may not be that simple, however. Beyond the criminal-justice aspect of the case lies what Boston University law professor Larry Yackle calls a “bedrock, structural constitutional question - the Supreme Court’s ability to superintend the lower courts in at least some kinds of habeas cases.”
The law states that the decision of the three-judge panel appointed to hear an inmate’s request is final. Its denial of permission, likely unless dramatic new evidence surfaces, cannot be appealed.
Denied such permission and told he could not appeal, Felker went to the Supreme Court anyway. His lawyers, supported by the American Civil Liberties Union, argue that the no-appeal provision unconstitutionally cuts into the Supreme Court’s oversight authority.
The justices could avoid that thorny separation-of-powers issue by finding that the new law preserves some of the court’s authority - what lawyers call “original” habeas jurisdiction. Some habeas corpus experts, including Yackle, believe that’s just what the court will do.
But such a ruling might invite a flood of appeals from prison cells across the nation directly to the Supreme Court, a result the justices likely would find unsatisfactory. And language reminding prisoners that such appeals are granted only rarely might not be enough of a disincentive.
It’s clear that at least five high court members - Chief Justice William H. Rehnquist and Justices Sandra Day O’Connor, Antonin Scalia, Anthony M. Kennedy and Clarence Thomas - find fault with the pace of appellate review, especially in death penalty cases.
But it’s far from certain all five will see the new federal law as a valid change.
“We are in for a great deal of litigation over novel issues arising out of this legislation,” Yackle said. “The Felker case is just the tip of the iceberg.”
The court has received lots of advice on how to rule. One friend-of-the-court brief, submitted by Sen. Orrin Hatch, R-Utah, in behalf of 54 members of Congress, argues that no restriction of judicial power is involved.
“A prisoner like (Felker) already has had numerous opportunities for judicial review,” Hatch said, noting that the law still allows a convicted criminal to carry at least three appeals all the way to the Supreme Court.
Felker was convicted of killing college student Joy Ludlum in Warner Robins, Ga., in 1981.
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