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Home Archive Volume 63 Volume 63, Issue 6 The New Habeas Corpus in Death Penalty Cases
The New Habeas Corpus in Death Penalty Cases

By Larry Yackle | 63 Am. U. L. Rev. 1791 (2014)

This article offers a systematic examination of Chapter 154, United States Code, which establishes new rules and procedures to govern cases in which state prisoners under sentence of death file federal habeas corpus petitions challenging their convictions or sentences.  Chapter 154 was enacted as part of the Antiterrorism and Effective Death Penalty Act of 1996.  Yet its provisions were made applicable only in capital cases arising from states that adopted qualifying schemes for providing indigent death row prisoners with counsel in state postconviction proceedings.  No state‚Äôs system for supplying lawyers in state court won approval and, in consequence, Chapter 154 has been on hold for nearly twenty years.  The Department of Justice recently revised the standards that state legal services programs must satisfy. 

This article proceeds from the premise that some states will secure certification that their schemes conform and focuses on the interpretation the provisions in Chapter 154 should receive in the cases to which they apply.  At the time of enactment, the rules and procedures in Chapter 154 were commonly said to be favorable to states responding to habeas corpus petitions.  This article contends that when they are interpreted sensibly and pragmatically, they turn out not to create especially state-friendly protocols for the conduct of capital habeas litigation.  Other provisions in the 1996 Act and innovations since have largely stolen the show inasmuch as they subject all habeas cases, capital and noncapital alike, to essentially the same arrangements.

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