ABA Urges Congress to Strengthen Right to Counsel, Reject Attempts to Curtail Claims of Innocence

WASHINGTON, D.C., July 13, 2005 — The _ today urged Congress to strengthen the right to counsel in criminal cases, not make it harder for defendants to assert their rights and claim innocence. The ABA asked Congress to reject a bill that would keep federal courts from reviewing habeas corpus claims, including claims of innocence. If Congress wants to streamline the criminal justice process, the ABA testified, ensuring competent counsel is the best strategy to keep cases moving and ensure justice for all litigants.

In testimony submitted to the Senate Committee on the Judiciary, Eric M. Freedman, a member of the ABA Death Penalty Representation Project Steering Committee, urged Congress to reject S. 1088, the “Streamlined Procedures Act of 2005.” He said that the “bedrock definition of justice…is that the legal system function reliably to punish the guilty and acquit the innocent.” To achieve justice expeditiously, Freedman continued, the ABA has recognized that government should provide competent counsel to indigent defendants and that habeas corpus proceedings must focus on relevant substance, not legal technicalities. “S. 1088 attacks both of these core principles,” said Freedman.

Freedman noted that S. 1088 proposes to dilute states’ obligation to provide competent counsel to the indigent by shifting the responsibility for reviewing habeas corpus petitions from the courts to the Attorney General. This policy would “allow states with inadequate systems for the provision of counsel to erect more barriers to reviewing the results of trials that are simply unreliable in ascertaining the truth.” Instead, Freedman said, Congress should provide more resources to states to implement the ABA’s Guidelines for the Appointment and Performance of Defense Counsel in Death Penalty Cases.

Of equal concern, Freedman testified, are provisions of S. 1088 that seek to remove state court decisions from “the scrutiny of their constitutional merits that federal habeas corpus was designed to insure in the first place.” The result, Freedman said, would be that evidence of innocence, which often only emerges over time and with the assistance of effective counsel during the course of the criminal justice process, would frequently not be found and would be prevented from reaching court.

Freedman concluded that rather than streamlining the process, as S. 1088’s title suggests, “speed and accuracy both will be impaired by the enactment of a bill that diverts the courts from the merits while inviting numerous challenges to the validity of its provisions.” To achieve the goals of expeditious and accurate justice, Congress should instead focus on the provision of competent counsel.

Eric M. Freedman served as the reporter for the ABA’s Guidelines for the Appointment of Defense Counsel in Death Penalty Cases and currently is a member of the steering committee of the ABA’s Death Penalty Representation Project. He is the Maurice A. Deane Distinguished Professor of Constitutional Law at Hofstra Law School and is a nationally recognized expert on the constitution and death penalty issues.

With more than 400,000 members, the _ is the largest voluntary professional membership organization in the world. As the national voice of the legal profession, the ABA works to improve the administration of justice, promotes programs that assist lawyers and judges in their work, accredits law schools, provides continuing legal education, and works to build public understanding around the world of the importance of the rule of law in a democratic society.