Houston Democrats

Of course, that principle should apply across the board – not just in this one Florida case. And one of the obvious places it should apply is in death penalty cases: as in Terri Shiavo’s case, we should not allow someone to die (if at all) unless and until the federal courts have had a full opportunity to consider everything about the case. But that’s not the way it works in death penalty cases. Instead, if the state courts have conducted an evidentiary hearing, the federal courts are precluded from holding a fact-finding hearing. In capital cases, if the state courts’ decision is not an “unreasonable application of clearly established federal law,” it cannot be changed by federal judges even if it is WRONG! If the issue has been submitted to and decided by the state courts, that decision cannot be set aside by a federal judge, even if it was wrong and the defendant is innocent (absent an “unreasonable application of clearly established federal law”). And federal claims must be submitted within one year after the conviction is final or they are forever waived. You can’t wait until seven or eight years into the process to assert your federal rights not to be executed – even if they are legitimate.

The stakes in death penalty cases are no less momentous than in Terri Shiavo’s case – in both cases it’s a matter of life and death and a wrong decision has an irreversible life-ending result. If an innocent person is executed, someone has been put to death who should not have been. Before that awful and irreversible consequence occurs, we should take every step possible to assure that no mistake is being made which could have life-ending consequences – including having the case fully reviewed by federal judges and not accepting the decision of a bunch of state court judges just because a lot of them look at the case and come to a death-producing conclusion – just as in Terri Shiavo’s case.

That’s the principle the Shiavo bill sought to enshrine: before a life-ending step is taken, federal courts should have an opportunity carefully to examine the case, even if 19 state court judges have already done so; they could be wrong and with stakes so high and irreversible, we should not entrust the life-death decision to state court judges alone.

I happen to agree with that principle. Now let’s see if the Republicans really believe in it, too, or if they were just grandstanding. Let’s see if they’ll amend the Antiterrorism and Effective Death Penalty Act of 1996 to provide federal courts with a full opportunity to review cases before death sentences are carried out, regardless of what the state court judges have done in such cases and without being automatically bound by the fact findings and legal determinations made by those state court judges. Congress thought it was important that federal judges have an opportunity to review state court determinations when life and death hang in the balance. About that, they are right – so long as the principle applies to everyone whose life or death fate is being decided by the courts.

Gerry Birnberg
Chair, Harris County Democratic Party