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ACLU * ACLU * ACLU * ACLU * ACLU * ACLU * ACLU * ACLU * ACLU NEWS RELEASE * NEWS RELEASE * NEWS RELEASE * NEWS RELEASE 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-- ============================================================= ACLU Free Reading Room | A publications and information resource of the gopher://aclu.org:6601 | American Civil Liberties Union National Office ftp://aclu.org | mailto:infoaclu@aclu.org | "Eternal vigilance is the price of liberty"

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