Congress is moving several fronts to impose sweeping limits on the ability of prisoners to challenge the legality of their convictions and sentences in federal court, the National Law Journal reports. Most of the Republican-led efforts occurred outside of the traditional committee system, which includes public hearings and “mark-ups” of proposed legislation and amendments. Shortly before the Senate Judiciary Committee on Nov. 16 was scheduled to hold its second hearing on the Streamlined Procedures Act, S. 1088, which would make the most dramatic changes in federal habeas review in nearly a decade, House and Senate members of a conference committee on legislation to reauthorize the USA Patriot Act inserted a key and controversial provision of that bill into the Patriot Act legislation.
That provision takes away from federal appellate courts the responsibility for determining whether states, through improvements in their indigent defense systems, met requirements of the 1996 Antiterrorism and Effective Death Penalty Act in order to “opt in” to the 1996 law’s expedited time frames for review of capital habeas petitions. Under the provision, the U.S. attorney general would set the standards for opt-in status and would decide whether a state complies. An appeal of the attorney general’s decision could be made only to the U.S. Circuit Court for the District of Columbia. Senator Jon Kyl, R-Az., noted that only Arizona has qualified for opt-in status under the 1996 act. Judiciary Committee chairman Arlen Specter (R-Pa.), indicated that he and his Republican colleagues were ready to send S. 1088 to the Senate floor despite widespread opposition from state and federal judges, the organized bar, and others. The bill is supported by a number of state and local prosecutors and victims’ groups.