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Prospects for Criminal Justice and Habeas Corpus:
Statement of Vivian Berger, ACLU General Counsel

For IMMEDIATE RELEASE 
September 27, 1993   

WASHINGTON -- Thus far, followers of criminal justice issues and habeas
corpus are confronting a "stealth term" with the pre-October Supreme Court
docket concealing more than it reveals. In a departure from previous
years, for example, not a single pending matter presents a question of
habeas law.

In addition, Justice Ruth Bader Ginsburg's replacement of Justice Byron
White -- a predictably conservative voice, especially on habeas and
capital punishment -- raises my hopes for a more civil libertarian
approach in these key areas. Her recent dissenting vote to grant a stay in
a death penalty case from Texas is surely an encouraging sign. Indeed, in
three important losses of the 1992-93 Term, relating to the law of
retroactivity in habeas proceedings and the constitutionality of Texas's
former capital punishment statutes, the substitution of Justice Ginsburg
for Justice White might have turned a 5-4 defeat for us into an equally
narrow victory.

Two of the more significant cases on this year's docket involve,
respectively, discrimination in jury selection through the use of
peremptory challenges and forfeiture of property in connection with drug
offenses. Both of these deal with rapidly evolving areas of law, which the
Court has repeatedly examined in recent years.

J.E.B. v. T.B. poses the question of whether the rule of Batson v.
Kentucky, prohibiting race-based peremptory strikes by prosecutors -- and
since broadened to preclude this behavior by criminal defendants and civil
litigants -- should also bar the exercise of challenges based on a juror's
gender. In this paternity and child support lawsuit by Alabama against
J.E.B., the alleged father was tried by a jury of 12 females because the
state employed its challenges to eliminate male jurors from the panel. An
amicus brief, filed on behalf of the ACLU and numerous other
organizations, asks the Court to hold that such discrimination violates
the equal protection clause. We argue that, while J.E.B. entails
peremptory challenges to men, it implicates the rights of women too.
Striking jurors on the grounds of gender fortifies stereotypical images of
both sexes. It thus perpetuates traditional bias against females and
undermines public confidence in the administration of justice. The Court's
general receptivity to Batson claims augurs well for our side's chances.

United States v. James Daniel Good Real Property involves the seizure of a
home, without advance notice or hearing, under a federal statute
permitting ostensibly civil, in rem forfeitures based only on a warrant
reflecting probable cause to believe that the property was "used, or
intended to be used ... to commit or facilitate" a drug offense. The
ACLU's brief in this case contends that ex parte procedures in this kind
of setting violate the due process clause. The taking of a house expands
forfeiture far beyond its historical application to contraband and objects
directly causing injury. Further, we urge, merely attaching a civil label
to a punitive action should not enable the government to sidestep the
safeguards criminal proceedings.

With regard to cruel and unusual punishment, one of the three capital
cases before the Court bears special mention. Tennessee v. Middle brooks
raises the question whether a death sentence based on the aggravating
factor that the murder occurred during the perpetration of a felony
sufficiently narrows the class of death-eligible killers, where this
factor merely duplicates the underlying felony murder verdict. In
Lowenfield v. Phelps in 1988, the Court upheld a similar scheme. But
conviction there at least required proof of an intent to kill, thus
restricting to a greater degree the number of defendants exposed to death.
Here, by contrast, a decision in favor of the state threatens great
expansion of liability to capital punishment -- a chilling specter for the
ACLU.

Finally, the crime bill, too, with its uncertainties, looms again upon the
horizon. As currently written, it offers a few, very limited correctives
to the Court's actual and threatened depredations on habeas doctrine. For
instance, it codifies the longstanding holding of Brown v. Allen, which
calls upon the federal courts to give independent consideration to
questions of law and mixed questions of law and fact; it thereby buries
the contrary suggestions of Justice Thomas's plurality opinion in Wright
v. West in 1992. It also makes plain (as Brecht v. Abrahamson last Term
did not) that the state bears the burden of proof on harmless error in
habeas actions, and slightly broadens the retroactivity of new rules of
law in habeas (which several decisions since 1989 have virtually
abolished).

On the negative side, however, the bill would restrict prisoners' remedies
by establishing a rigid six-month limitations period for habeas petitions.
It would also fail to modify harsh forfeiture rules pronounced by the
Court in the past two decades. And, as usual, it would multiply death
penalty provisions for a host of federal crimes. The bill's prospect for
passage in anything like its present form, though, are still unclear.

--endit--

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