You want it done or you want it done right?

The New York Times has this story about federal judges chafing under constraints that prevent them from (depending on your point of view)

• ensuring that trials, and especially capital trials, bear at least a passing relationship to the fundamentally fair procedures that the Constitution requires, or
• disrupting the carefully crafted criminal justice systems developed by the states and preventing vicious criminals from being free to wage war against decent people.

OK, that's not exactly how the Times sees it, and it's certainly not how the Times phrases it. But it's the gist of the problem.

Here's the thing. The last step in a criminal proceding - and especially in a death penalty case - is federal habeas corpus. Habeas, in one form or another, is routinely traced back to Magna Carta, is enshrined in Article I of the Constitution, and is designed to provide a final check. In our system, the idea is that the federal courts are in the best position to determine whether the guarantees of the federal Constitution have been respected. They're in that position by training and by being, largely, free of politics.

The problem (or not, depending on your perspective) is that the federal courts were actually finding gross violations of rights in many death penalty cases. By the mid 1990s, the Supreme Court was deciding cases in ways that limited the rights state prisoners to seek habeas relief, but many in Congress wanted more. Too many people were gaming the system, they said. Federal judges were being too picky in finding and acting on trivial violations of the Constitution. Something had to be done.

So, in 1996, with death-penalty-friendly Democrat Bill Clinton in the White House (remember he'd left the campaign trail in 1992 to return to Arkansas where he was Governor so that he could personally oversee the execution of the severely brain damaged Ricky Ray Rector), Congress passed and the President signed the Anti-Terrorism and Effective Death Penalty Act of 1996 which was (nobody disputes this) intended to narrow federal court review of death sentences and to speed up executions.

The Act, known as AEDPA, does that by setting a strict timetable for when habeas corpus petitions must be filed and by narrowing the circumstances under which the petitions can be granted. The details don't matter much here, though they make an enormous difference to those on death row and to the lawyers and judges who work on these cases, but the result is a landmine of "gotcha" procedural hurdles for the inmate seeking federal review and a sharply limited set of circumstances in which review can be granted.

It's no longer enough for habeas relief that a trial was fundamentally unfair due to constitutional violations. It has to have been so unfair that no reasonable judge could disagree. And no constitutional violation will count unless the U.S. Supreme Court has spoken to it. (I'm oversimplifying drastically.)

But see, here's the thing. It takes time. It takes care. It takes resources and investigation.

I've danced around the subject of innocence here before, but here's its bottom line: Some factually innocent people are sentenced to die. Forget the percentages. Forget the raw numbers. Don't worry about whether it's fall confessions or mistaken eyewitness identification of sloppy forensics or some sort of conspiracy. Regardless of why or who or how often, it happens.

Nobody disputes that it can happen and that, at least on a few occasions, it actually has. And everyone agrees that actually executing an innocent person is terrible. (Even those who, like Justice Scalia, think the execution of an innocent person would not offend the constitution if the person received full process think it a terrible thing, though they tend to think the likelihood vanishingly small.) But see, proving innocence takes time and resources and courts willing to allow you those things - and then allow the opportunity to make the case.

Consider Ronald Kitchen. He was sentenced to die in 1988. In July of this year, 21 years later, he was freed from prison because, well, there's just not any real evidence that he's guilty. Or Paul House, freed this year after 23 years. (You can read their stories here.) Or Alton Logan, I've written about him before,who spent 26 years in prison for a murder he didn't commit.
Not all cases take that long, of course, but speed things up too much, reduce the opportunity to contest guilt, and some of these men would be dead, killed in the name of efficiency.

OK, if you're going to have a death penalty system, you're going to make mistakes. Nobody seriously believes it can't happen (though the likelihood of fatal error is debated). But we want to be sure, really sure. And that means being careful. And that means taking time. It really is as simple as that. Or it should be.

I captioned this post, "You want it done or you want it done right?" That really is the question.

To ask it should be to answer it.