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<DIV><FONT face=Arial>If habeas corpus issues interest you, this will make you
realize just how much the "Great Writ" is under attack...</FONT></DIV>
<DIV><FONT face=Arial></FONT> </DIV>
<DIV style="FONT: 10pt arial">----- Original Message -----
<DIV><B>Sent:</B> Thursday, September 21, 2006 10:33 PM</DIV>
<DIV><B>Subject:</B> Stealth Habeas Amendments</DIV></DIV>
<DIV><BR></DIV>
<DIV align=left>from the Justice Project:<BR></DIV>
<H2 style="TEXT-ALIGN: center"><SPAN></SPAN></H2>
<H2 style="TEXT-ALIGN: center"><SPAN>Habeas Under Attack Again</SPAN></H2>
<P><SPAN>
<P><FONT size=2>Last week, criminal justice advocates mobilized against a
potentially devastating blow to <EM>habeas corpus</EM> rights. Despite
widespread opposition to the Streamlined Procedures Act and other legislation
that would effectively repeal the "Great Writ" of <EM>habeas corpus</EM>,
members of the House and Senate Judiciary committees worked behind closed doors
last week to attach such measures to a Department of Defense (DOD) Authorization
Bill. </FONT></P>
<P><FONT size=2>Some 300 pages of non-germane language, including
<EM>habeas</EM> repeal measures, could be tacked on to the DOD bill -- the
primary purpose of which is to provide resources for troops in Afghanistan and
Iraq. Much of this maneuvering has been taking place though back door channels,
and regular order, which assures that both chambers of Congress have a fair
opportunity to consider the legislation, has been skirted. Alarmingly, the texts
of some of the measures have not been seen by many members and their staff nor
by the public. This method of passing unpopular measures has, unfortunately,
worked in the past. Last year, during eleventh hour Patriot Act reauthorization
discussions, Sen. Jon Kyl (R-Arizona) inserted two provisions that significantly
limit the ability of the Great Writ to enforce important Bill of Rights
protections. </FONT></P>
<P><FONT size=2>In recent years, thanks in part to the work of The Justice
Project and our supporters and allies, Congress overwhelmingly supported the
passage of the bipartisan </FONT><A
href="http://www.thejusticeproject.org/national/ipa/"><FONT size=2>Innocence
Protection Act</FONT></A><FONT size=2> to correct some of the problems in the
criminal justice system that lead to wrongful convictions. The <EM>habeas</EM>
repeal provisions worked on this week would undercut much of that
progress and increase the risk that innocent people will remain in prison or
even be executed. </FONT></P>
<P><FONT size=2><EM>Habeas</EM> repeal provisions have been <A
href="http://www.thejusticeproject.org/national/habeas/pdfs/organizations-opposed4-06-02-06.pdf">opposed</A> (pdf)
by the Conference of Chief Justices, which includes the highest judicial
officers from each of the fifty states and all US territories, the Judicial
Conference of the United States (the principal policymaking body with regard to
the US Courts), over thirty former judges, and more than sixty former
prosecutors from across the political spectrum, because there is no evidence
that this legislation is needed. </FONT></P>
<P><FONT size=2>The Justice Project and our allies remain on the offensive;
<EM>habeas</EM> repeal language could easily be attached to a number of pieces
of legislation in these final few days before Congress recesses for the midterm
elections or in a potential lame duck session later this fall. </FONT><FONT
size=2>Residents of the following states can contact their Congressional
representatives (who hold leadership positions or sit on committees
considering these measures) through our website and encourage them to oppose
changes that limit our <EM>habeas</EM> protections: </FONT><A
href="http://ga3.org/campaign/habeas_senate"><FONT size=2>CA</FONT></A><FONT
size=2>, </FONT><A href="http://ga3.org/campaign/habeas_senate"><FONT
size=2>DE</FONT></A><FONT size=2>, </FONT><A
href="http://ga3.org/campaign/habeas_senate"><FONT size=2>MA</FONT></A><FONT
size=2>, </FONT><A href="http://ga3.org/campaign/habeas_senate"><FONT
size=2>MI</FONT></A><FONT size=2>, </FONT><A
href="http://ga3.org/campaign/habeas_leadership"><FONT size=2>PA</FONT></A><FONT
size=2>, </FONT><A href="http://ga3.org/campaign/habeas_leadership"><FONT
size=2>TN</FONT></A><FONT size=2>, </FONT><A
href="http://ga3.org/campaign/habeas_senate"><FONT size=2>WI</FONT></A><FONT
size=2> and </FONT><A href="http://ga3.org/campaign/habeas_Warner"><FONT
size=2>VA</FONT></A><FONT size=2>. Also, some districts in </FONT><A
href="http://ga3.org/campaign/habeas_leadership"><FONT size=2>IL</FONT></A><FONT
size=2>, </FONT><A href="http://ga3.org/campaign/habeas_leadership"><FONT
size=2>OH</FONT></A><FONT size=2> and </FONT><A
href="http://ga3.org/campaign/habeas_conf"><FONT size=2>NC</FONT></A><FONT
size=2>. </FONT></P>
<P><FONT size=2>Our <EM>habeas</EM> </FONT><A
href="http://www.thejusticeproject.org/national/habeas/"><FONT
size=2>webpage</FONT></A><FONT size=2> will be updated with the latest
information.<BR></FONT></P>
<P><FONT size=2><BR></FONT></P></SPAN>
<P></P>
<H2 style="TEXT-ALIGN: center"><SPAN>Habeas Protection
Campaign</SPAN></H2><SPAN><FONT face="arial, helvetica" size=-2>
<P style="TEXT-ALIGN: center"><FONT face=Verdana>[</FONT><A
href="http://www.thejusticeproject.org/national/habeas/#about"><FONT
face=Verdana>About the Legislation</FONT></A><FONT face=Verdana>][</FONT><A
href="http://www.thejusticeproject.org/national/habeas/#opposing"><FONT
face=Verdana>Letters, Testimony and Editorials Opposing the
Legislation</FONT></A><FONT face=Verdana>]<BR>[</FONT><A
href="http://ga3.org/tjp/home.html?source=habeas_action"><FONT face=Verdana>Take
Action!</FONT></A><FONT face=Verdana>]</FONT></P></FONT>
<H3 style="TEXT-ALIGN: center"><EM>Habeas</EM> Repeal Measures Increase Threat
of Wrongful Convictions</H3>
<P><!--StartFragment --><FONT size=2>Although there is widespread opposition to
the Streamlined Procedures Act and other legislation that would effectively
repeal the "Great Writ" of <EM>habeas corpus</EM>, members of the House and
Senate Judiciary committees continue to work behind closed doors to pass these
reforms. Efforts are currently afoot to attach widely criticized <EM>habeas</EM>
measures and 300 pages of other non-germane matters to a Department of Defense
Authorization bill that is presently in conference and will be finalized in the
coming days. This closed-door strategy is nothing new: in the past, Congress
permitted widely opposed <EM>habeas</EM> legislation to bypass normal review.
During eleventh hour Patriot Act reauthorization discussions, Sen. Jon Kyl
(R-Arizona) inserted two provisions that significantly limit the ability of the
Great Writ to enforce important Bill of Rights protections. </FONT></P>
<P><FONT size=2>Now, the DOD Authorization bill -- the purpose of which is
to provide resources for forces in Afghanistan and Iraq -- is being weighed
down and slowed by controversial and wrong-headed crime legislation that has
otherwise been unable to garner majority support in both houses of Congress.
Members of both parties who have fought on principle to resist these regressive
changes to habeas should continue to do so and not be made to appear
anti-patriotic when they rightfully object to this unnecessarily bloated DOD
bill. </FONT></P>
<P><FONT size=2>Regular order -- which assures that both Chambers of Congress
have a fair opportunity to consider the legislation -- has been skirted; indeed,
the texts of some of the added measures has not been seen by many members and
their staff nor by the public -- there is only one proper course of action --
remove the non-germane matters from the bill. </FONT></P>
<P><FONT size=2>In recent years, Congress overwhelmingly supported the passage
of the bipartisan </FONT><A
href="http://www.thejusticeproject.org/national/ipa/"><FONT size=2>Innocence
Protection Act</FONT></A><FONT size=2> to correct some of the problems in the
criminal justice system that led to wrongful convictions. The <EM>habeas</EM>
repeal provisions would undercut much of that progress, and increase the risk
that innocent people will remain in prison or even be executed. </FONT></P>
<P><FONT size=2>On June 12, 2006, the United States Supreme Court’s 5-3 decision
in <EM><A href="http://www.thejusticeproject.org/national/ipa/">House v.
Bell</A></EM> reaffirmed how critically important it is that access to habeas
corpus remain available to state prisoners in this country. Indeed, if
<EM>habeas</EM> "reforms" that have been introduced in Congress were the law,
Mr. House almost certainly would have been out of court without anyone
considering the merits of his arguments. Errors routinely occur during the trial
phase and state courts often fall short in their responsibility to correct these
errors; by cutting federal courts out of the review process, as Congress is
attempting to do, these errors will go uncorrected, increasing the likelihood
that innocent people will languish in prison, or even be executed. </FONT></P>
<P><FONT size=2>The Streamlined Procedures Act and the <EM>habeas</EM>
provisions found in the Patriot Act and other drastic <EM>habeas</EM> repeal
measures are opposed by a </FONT><A
href="http://www.thejusticeproject.org/national/habeas/pdfs/organizations-opposed4-06-02-06.pdf"><FONT
size=2>broad array</FONT></A><FONT size=2> of groups and individuals including
the Conference of Chief Justices, the Judicial Conference of the United States,
more than 60 former prosecutors, 30 current and former judges, and a number of
leading conservatives. In the past months, the U.S. Conference of State Chief
Justices passed a resolution opposing the legislation and urging that additional
study and analysis of current laws governing <EM>habeas corpus</EM> petitions be
undertaken. In September, the Judicial Conference of the United States -- an
entity created by Congress in 1922 to "serve as the principal policy making body
concerned with the administration of the United States Courts" -- similarly
urged further study before any changes are made to the writ of <EM>habeas
corpus</EM>. </FONT></P>
<P><FONT size=2>The Streamlined Procedures Act: </FONT></P>
<UL>
<LI><FONT size=2><EM>Is opposed by a broad array of groups and
individuals,</EM> including the Conference of Chief Justices, the Judicial
Conference of the United States, more than 60 former prosecutors, 30 current
and former judges, and a number of leading conservatives. In the past months,
the US Conference of State Chief Justices passed a resolution opposing the
legislation introduced by Sen. Jon Kyl (R-AZ) and Rep. Dan Lungren (R-CA) and
urging that additional study and analysis of current laws governing <EM>habeas
corpus</EM> petitions be undertaken. In September, the Judicial Conference of
the United States -- an entity created by Congress in 1922 to "serve as the
principal policy making body concerned with the administration of the United
States Courts" -- similarly urged further study before any further changes to
<EM>habeas</EM> are made. <BR><BR></FONT>
<LI><FONT size=2><EM>Would generate numerous complicated legal issues and
years of litigation and delay.</EM> Contrary to the title of the legislation,
the Streamlined Procedures Act would generate years of delay in the resolution
of prisoner appeals because it would overturn a series of Supreme Court
decisions, disregard long-established principles of federalism, and invite
constitutional challenges on the theory that it impairs the independence of
the federal courts. In 1996, Congress amended the <EM>habeas corpus</EM>
statute by enacting the Anti-Terrorism and Effective Death Penalty Act
(AEDPA). The AEDPA contained numerous provisions that have required years of
review by the Supreme Court and the lower federal courts to authoritatively
interpret. If passed, the Streamlined Procedures Act would pose similar
problems for the courts. <BR><BR></FONT>
<LI><FONT size=2><EM>Would lead to more errors and unfairness in the justice
system.</EM> The current system of indigent defense in the United States -- in
which defenders are chronically underfunded and have far too many
clients -- often fails to guarantee defendants a fair trial and state courts
fall short in their responsibility to correct the errors that occur during the
trial phase. By cutting federal courts out of the review process, these errors
will go uncorrected, calling into question the integrity of the criminal
justice system. Additionally, while finality is important to the victims of
crime and to the public in general, no one wants an innocent person to be
convicted of a crime, especially when the punishment is death, and when it may
well mean that the real perpetrator remains free to commit more
crimes.<BR><BR></FONT>
<LI><FONT size=2><EM>Would increase the likelihood that an innocent person
will be executed.</EM> The rising number of innocent prisoners being freed
from jails around the US in recent years has revealed serious flaws in our
criminal justice system. Congress has worked to correct some of these problems
with last year's enactment of the Innocence Protection Act, but the
Streamlined Procedures Act would undercut much of that progress. When an
innocent person is convicted of a crime it is most often because the defendant
received ineffective assistance of counsel or an act of police or
prosecutorial misconduct occurred in the case. Innocent prisoners need to be
able to challenge their cases by filing <EM>habeas corpus</EM> petitions that
can then clear the way for them to prove their innocence. </FONT></LI></UL>
<P><FONT size=2>Despite this widespread opposition, <EM>habeas</EM> repeal
measures are being attached to other bills making their way through Congress,
including the Patriot Act and the Omnibus Crime Bill. You can help by </FONT><A
href="http://ga3.org/tjp/home.html?source=habeas_action"><FONT size=2>taking
action</FONT></A><FONT size=2> today!</FONT></P>
<P><EM><FONT size=2>Status of the Legislation in the Senate:</FONT></EM></P>
<P><!--StartFragment --><FONT size=-1><FONT size=-1>The Senate Judiciary
Committee held its second hearing on the bill on Wednesday, November 16th. A
hearing on the legislation took place on July 13 featuring witnesses including
former US Solicitor General Seth Waxman, innocence expert Barry Scheck and death
penalty attorney and law professor Bryan A. Stevenson arguing that the bill
would increase the likelihood of innocent people being executed. The witnesses
also noted how the legislation undermines recent bipartisan action by Congress
to address inaccuracy in the criminal justice system, through the Innocence
Protection Act, and conflicts with the Anti-Terrorism and Effective Death
Penalty Act.</FONT></FONT></P>
<P><FONT size=-1><FONT size=-1>Committee Chairman Arlen Specter, R-Pa. has
amended the legislation twice addressing some of the concerns about the original
bill; however, the amended version remains a serious threat to fairness and
accuracy in the criminal justice system.</FONT></FONT></P>
<P><STRONG><A href="http://ga3.org/tjp/home.html">Take action</A></STRONG> today
to stop this legislation in the Senate!</P>
<P><EM>Status of the Legislation in the House:</EM></P>
<P>The House Judiciary Subcommittee on Crime, Terrorism and Homeland Security
held its second hearing on the House version of the bill, HR 3035, on Thursday,
November 10th. At the hearing, Washington, DC attorney Ruth E. Friedman, a
former senior counsel at the Equal Justice Initiative, commented that the
legislation was written based largely on anecdotal information about cases in
the 9th Circuit Court of Appeals. Friedman noted, "Unlike any prior reform or
revision, this legislation would strip the federal judiciary of jurisdiction to
consider claims of serious constitutional error arising from state court
convictions. In so doing, it would dismantle years of Supreme Court
jurisprudence and wreak havoc on the administration of criminal justice. HR 3035
would deal this crippling blow to <EM>habeas corpus</EM> without any evidence of
a need for such extreme measures." Read Friedman's <A
href="http://www.thejusticeproject.org/national/habeas/pdfs/17364.pdf">full
testimony</A> (pdf).</P>
<P><STRONG><A href="http://ga3.org/tjp/home.html">Take action</A></STRONG> today
to stop this legislation in the House!</P>
<P style="TEXT-ALIGN: center"></P>
<HR width="60%">
<P style="TEXT-ALIGN: center"><STRONG><A name=about></A>About the
Legislation</STRONG> </P>
<UL><!--<li>Legislation Summary: <a href="http://ccjr.policy.net/proactive/newsroom/release.vtml?id=39164">Section-By-Section</a>-->
<LI>Full Text of <A
href="http://www.thejusticeproject.org/national/habeas/pdfs/17342.pdf">S
1088</A>, including Sen. Specter's substitute language
<LI>Full Text of <A
href="http://www.thejusticeproject.org/national/habeas/pdfs/17315.pdf">HR
3035</A> </LI></UL>
<P><STRONG>Lives at Stake</STRONG> </P>
<UL>
<LI>Here is a sampling of the <A
href="http://www.thejusticeproject.org/national/habeas/lives-at-stake-innocent.html">innocent
people</A> who might have been executed or left to languish in prison if the
Streamlined Procedures Act were law while their cases were under review.
<LI>Here are more <A
href="http://www.thejusticeproject.org/national/habeas/lives-at-stake-injustices.html">examples
of cases</A> involving egregious prosecutorial misconduct and other injustices
that the Streamlined Procedures Act would leave untouched. </LI></UL>
<P style="TEXT-ALIGN: center"></P>
<HR width="60%">
<P style="TEXT-ALIGN: center"><STRONG><A name=opposing></A>Opposing the
Streamlined Procedures Act</STRONG></P>
<UL>
<LI>View a list of <A
href="http://www.thejusticeproject.org/national/habeas/pdfs/organizations-opposed4-06-02-06.pdf">organizations
and individuals</A> opposing the legislation. </LI></UL>
<P><STRONG>Letters and Statements</STRONG></P>
<UL>
<LI><A
href="http://www.thejusticeproject.org/national/habeas/pdfs/17312.pdf">Letter</A>
from the Judicial Conference of the United States to Sen. Specter. The
Judicial Conference is comprised of Senior Circuit Court Judges and District
Judges.
<LI><A
href="http://www.thejusticeproject.org/national/habeas/pdfs/17309.pdf">Joint
Resolution</A> on S 1088 from the Conference of Chief Justices and Conference
of State Court Administrators.
<LI><A
href="http://www.thejusticeproject.org/national/habeas/pdfs/17343.pdf">Letter</A>
from Texas Supreme Court Chief Justice Wallace Jefferson to the National
Conference of Chief Justices.
<LI><A
href="http://www.thejusticeproject.org/national/habeas/pdfs/17318.pdf">Letter</A>
from 31 current and former federal and state judges to Sen. Specter and Sen.
Leahy.
<LI><A
href="http://www.thejusticeproject.org/national/habeas/pdfs/17311.pdf">Letter</A>
from California Supreme Court Chief Justice Ronald M. George to Senator Dianne
Feinstein (D-CA).
<LI><A
href="http://www.thejusticeproject.org/national/habeas/pdfs/17319.pdf">Letter</A>
from 71 current and former federal and state prosecutors to leadership of
House and Senate Judiciary committees.
<LI><A
href="http://www.thejusticeproject.org/national/habeas/pdfs/17340.pdf">Letter</A>
from former FBI directors William H. Webster and William S. Sessions to Sen.
Specter and Sen. Leahy.
<LI><A
href="http://www.thejusticeproject.org/national/habeas/pdfs/17313.pdf">Letter
and memo</A> from the Rutherford Institute, a non-profit conservative legal
organization dedicated to the defense of civil liberties and human rights.
<LI><A
href="http://www.thejusticeproject.org/national/habeas/pdfs/17307.pdf">Letter</A>
from the American Conservative Union to senators.
<LI><A
href="http://www.thejusticeproject.org/national/habeas/pdfs/17360.pdf">Letter</A>
from the American Association of Jewish Lawyers and Jurists to Senator
Specter.
<LI><A
href="http://www.thejusticeproject.org/national/habeas/pdfs/17305.pdf">Letter</A>
from former Georgia Congressman and prosecutor Bob Barr to Sen. Specter.
<LI><A
href="http://www.thejusticeproject.org/national/habeas/pdfs/17308.pdf">Letter</A>
from Most Reverend Nicholas DiMarzio, Chairman of the Domestic Policy
Committee of the US Conference of Catholic Bishops, to senators.
<LI><A
href="http://www.thejusticeproject.org/national/habeas/pdfs/17325.pdf">Letter</A>
from the American Bar Association to Sen. Specter and Sen. Leahy.
<LI><A
href="http://www.thejusticeproject.org/national/habeas/pdfs/17317.pdf">Letter</A>
from the NAACP Legal Defense and Education Fund to Sen. Specter. </LI></UL>
<P><STRONG>Testimony</STRONG></P>
<P><EM>Testimony before the Senate Committee on the Judiciary - November 16,
2005</EM> </P>
<UL>
<LI><A
href="http://www.thejusticeproject.org/press/statements/statement-of-seth-p-waxman-on.html">Seth
Waxman</A>, Former US Solicitor General
<LI><A
href="http://www.thejusticeproject.org/press/statements/statement-of-judge-howard-d.html">Judge
Howard D. McKibben</A>, United States district court judge from the District
of Nevada and Chair of the Judicial Conference Committee on Federal-State
Jurisdiction </LI></UL>
<P><EM>Testimony before the Senate Committee on the Judiciary - July 13,
2005</EM> </P>
<UL>
<LI><A
href="http://www.thejusticeproject.org/press/statements/statement-of-seth-waxman-on.html">Seth
Waxman</A>, Former US Solicitor General
<LI><A
href="http://www.thejusticeproject.org/press/statements/statement-of-barry-c-scheck.html">Barry
Scheck</A>, Co-Director, Innocence Project and Prof. Of Law, Cardozo Law
School, Yeshiva University
<LI><A
href="http://www.thejusticeproject.org/press/statements/statement-of-bryan-a-on-the.html">Bryan
A. Stevenson</A>, Director, Equal Justice Initiative of Alabama and Prof. Of
Clinical Law, NYU School of Law </LI></UL>
<P><EM>Testimony before the House Judiciary Subcommittee on Crime, Terrorism,
and Homeland Security - November 10, 2005</EM> </P>
<UL>
<LI><A
href="http://www.thejusticeproject.org/national/habeas/pdfs/17364.pdf">Ruth E.
Friedman</A>, Attorney, Washington, DC </LI></UL>
<P><EM>Testimony before the House Judiciary Subcommittee on Crime, Terrorism,
and Homeland Security - June 30, 2005</EM> </P>
<UL>
<LI><A
href="http://www.thejusticeproject.org/press/statements/statement-of-bernard-e-on-the.html">Bernard
E. Harcourt</A>, Professor of Law, University of Chicago </LI></UL>
<P><STRONG>Editorials and Op-Eds</STRONG></P>
<UL>
<LI>Read <A
href="http://www.thejusticeproject.org/national/habeas/sample-editorials-against-the.html">quotes</A>
from select newspaper editorials regarding the Streamlined Procedures Act of
2005.
<LI>Editorial: "<A
href="http://www.thejusticeproject.org/press/articles/the-erosion-of-the-great-writ.html">The
erosion of the Great Writ</A>" from the American Judicature Society. October
25, 2005.
<LI>Op-Ed: "<A
href="http://www.thejusticeproject.org/press/articles/baich-stones-in-the-pathway.html">Stones
in the pathway of justice</A>" by Dale A. Baich as published in the
<EM>Arizona Republic</EM> on September 18, 2005. Baich is an assistant federal
public defender who handles death penalty appeals and adjunct professor of law
at Arizona State University College of Law. </LI></UL></SPAN>
<P><SPAN>
<P><BR></P></SPAN>
<P></P>
<P>
<HR>
<P></P>____________________________________________________________<BR><BR>Habeas
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