IV. Congress Gets Involved
In 1994, Congress passed a federal crime bill (the Violent Crime Control and Law Enforcement Act), which expanded the number of federal crimes punishable by death to about 50. All but four of the federal crimes involve murder. The four exceptions are treason; espionage; drug trafficking in large quantities; and attempting, authorizing, or advising the killing of any public officer, juror, or witness in a case involving a continuing criminal enterprise— regardless of whether such a killing actually occurs. In addition, the bill reinstated the death penalty for federal crimes for which previous death penalty provisions could not pass constitutional muster. The new law brought the earlier statutes into compliance with guidelines established by the Supreme Court. The U.S. government executed Timothy McVeigh and Juan Raul Garza in 2001, and Louis Jones Jr. in 2003. They were the first federal executions in nearly 40 years. Prior to those three, the last execution by the U.S. government was on March 15, 1963, when Victor H. Feguer was hanged at Iowa State Penitentiary.
The Antiterrorism and Effective Death Penalty Act was enacted in 1996, in part to speed up the process and reduce costs. The law requires that second or subsequent habeas petitions be dismissed when the claim had already been made in a previous petition. It also requires that new claims be dismissed, unless the Supreme Court hands down a new rule of constitutional law and makes it retroactive to cases on collateral review. Under the act, the only other way the Supreme Court will hear a claim made for the first time is when the claim is based on new evidence not previously available. Even then, the new evidence must be of sufficient weight, by a clear and convincing standard of proof, to convince a judge or jury that the capital defendant was not guilty of the crime or crimes for which he or she was convicted.
The act also made the federal appellate courts “gatekeepers” for second or subsequent habeas corpus petitions. Thus, to file a second or subsequent claim under the new law, a capital defendant must first file a motion in the appropriate appellate court announcing his or her intention. A panel of three judges must then hear the motion within 30 days. The judges must decide whether the petitioner has a legitimate claim under the new act. If the claim is denied, the new law prohibits any review of the panel’s decision, either by a rehearing or writ of certiorari to the Supreme Court. A writ of certiorari is a written order, from the Supreme Court to a lower court whose decision is being appealed, to send the records of the case forward for review. So far, the Supreme Court has upheld the constitutionality of the law.
Some people argue that the appellate reviews are unnecessary delaying tactics (at least those beyond the automatic review). However, the outcomes of the reviews suggest otherwise. Nationally, between 1973 and 2006, a total of 35% of the initial convictions or sentences in capital cases were overturned on appeal, and, contrary to popular belief, those reversals were generally not the result of so-called legal technicalities. They were the product of such fundamental constitutional errors as denial of the right to an impartial jury, problems of tainted evidence and coerced confessions, ineffective assistance of counsel, and prosecutors’ references to defendants who refuse to testify. The percentage of death penalty cases overturned by the appellate courts since the reestablishment of capital punishment has far exceeded the percentage of appellate reversals of all other noncapital felony cases, which, in most states, probably does not exceed 1%.