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Making A Bad Policy Worse

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A great article by Erwin Chemerinsky about the latest appalling cutback on habeas corpus rights. The odious Anti-terrorism and Effective Death Penalty Act gave a one-year time limit to file a habeas petition in federal court. The limit could be cut down even further to six months, but only if the state provided lawyers for a federal appeal. You can probably see the classic Republican bait-and-switch coming:

When it reauthorized the Patriot Act last year, Congress added a little-noticed provision that lets the attorney general, rather than federal judges, decide whether states are complying with the 1996 law. No one paid much attention, until now.

Gonzales, it has been widely reported, is about to certify California and other states as being in compliance with the 1996 law, in essence just giving them the six-month statute of limitations. But these states have done nothing that this law requires. Everywhere but Arizona, death row inmates still have to pay for their attorneys (unlikely), get pro bono representation (difficult) or represent themselves (unwise). Any “certification” is a lie.

Those who favor the shorter statute of limitations are frustrated by the long delays before executions are carried out. But Gonzales’ move is not about preventing delays; at most, it speeds things up by six months. It is about preventing some inmates from having a habeas corpus petition heard at all.

Gonzales continues to exemplify the remarkable Van Halen trend in the AGs office, where somehow things started with John Ashcroft and yet have gotten much worse. The other lesson, of course, is that as is often the case the Patriot Act contained a number of provisions that had nothing whatsoever to do with fighting terrorism but were simply longstanding reactionary-statist proposals warmed over and repackaged under a more appealing label.

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