In capital cases, the law prevents federal courts from considering any issue not raised and decided in state court, no matter how important the claim or why it was not presented. The most common reason is the deficient quality of lawyers appointed to defend poor people accused of capital crimes. They have been represented by lawyers who were intoxicated, slept during trial and, no matter how well meaning, lacked the knowledge, skills and resources to defend a capital case. If a lawyer fails to raise an issue in the state courts, a federal court is prevented from ruling on it, no matter how valid it may be. Every day, people are paying with their lives because of these restrictions.

Why it matters:

There is substantial risk of error in these cases. A Columbia University study found that, before AEDPA, federal courts identified serious constitutional violations in an astounding two-thirds of cases in which state courts had upheld death sentences. Recently, more than 250 prisoners, including more than 100 who had been condemned to death, have been exonerated. Some of the death row inmates, who had come within hours of being executed, were freed not because the courts protected them, but because journalists, law and journalism students, and others unconnected with the judicial system discovered evidence of their innocence.

What we should do:

The Schiavo law supporters appeared to agree that in life-or-death cases, there should be no obstacles to full federal court review. Senator Rick Santorum, R-Pa., compared the Schiavo bill to "a horrific death penalty case in California," and urged his colleagues "to understand that [as in that case,] there is a proper role for Federal courts to look to make sure that due process was followed."

The founders gave federal judges lifetime tenure to protect them from political pressures, so they could decide cases in good faith and according to the law, no matter what public opinion demanded. The exonerations of people in prison and on death row have taught Americans a hard lesson-that our criminal justice system is fallible, and that a state court may convict the wrong person. This is especially true in capital cases, which engender great passions and place enormous pressures on judges and juries to convict and impose a death sentence. Congress should pass legislation providing for the same full federal court review of life and death decisions in capital cases that it provided for a single person in the Schiavo law. [our emphasis]

Note: "Stephen B. Bright is the H. Lee Sarokin Director of the Southern Center for Human Rights, and teaches at Yale Law School. Virginia E. Sloan, a member of the Center's board of directors, is the president of the Constitution Project and was a lawyer with the U.S. House of Representatives Judiciary Committee from 1980 to 1995."