Jon Kyl, July 18, 2005

Last week the Senate Judiciary Committee held a hearing on a bill I introduced to reduce the backlog of federal court appeals in major criminal cases and help bring closure to the victims of violent crime. Entitled the Streamlined Procedures Act, it is an update of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), which was passed in the wake of the Oklahoma City bombing.

The AEDPA was designed to limit endless death penalty appeals in state convictions, imposing a limit for all appeals relating to the right to writ of habeas corpus in capital cases, and reducing the length of the appeals process by limiting the role of federal courts. (Habeas corpus is the legal procedure by which persons accused of crimes seek to be released from custody - it is frequently used by death row inmates.) When the AEDPA was enacted, then-President Clinton remarked that "it should not take eight or nine years and three trips to the Supreme Court to finalize whether a person in fact was properly convicted or not."

Ten years later, unfortunately, things have gotten worse, not better. The backlog of "habeas claims" has actually increased, and so has the workload of prosecutors, which is why Kent Cattani, chief counsel for the capitol litigation section of the Arizona Attorney General’s office, appeared before the committee to testify in strong support of my bill.

Federal court appeals continue to drag on endlessly. According to the Administrative Office of the Courts, in fiscal year 1994, there were 13,359 federal habeas petitions pending before the U.S. District Courts. By fiscal year 2003 - the last year for which data are available - that number had risen to 23,218. Similarly, in FY94, 3,799 habeas petitions were pending before the U.S. Courts of Appeals. By 2003, the backlog had nearly doubled, to 7,025.

These numbers represent much more than just a burden on the judicial system. Every one of these cases has a human cost as well, often a heartbreaking one.

Last month, Carol Fornoff of Tempe testified before the House Judiciary subcommittee on crime about the impact on her family of delays in reviewing the case of the man who was convicted in 1985, based on voluminous evidence, of raping and murdering her 13-year-old daughter Christy. The Arizona Supreme Court upheld the case in a lengthy opinion in 1988. The killer then filed a federal habeas petition in 1992, and the federal district court spent 7 years reviewing the case. After more appeals and remands, it remains in federal habeas review today, two decades later.

Mrs. Fornoff’s testimony made a powerful case for why these types of delays are intolerable. Among other things, she noted that by this fall the case will have been in the federal appellate courts for longer than Christy was alive. The Fornoff family has a right to know within a reasonable timeframe if the murderer was properly convicted, if his conviction might be thrown out, if they might have to endure another trial, or worse, if there is a possibility that the killer might one day be released.

I have long made a priority of victims’ rights, and, along with Sen. Dianne Feinstein (D-CA), co-sponsored the Justice for All Act, which President Bush signed into law last fall. At the same time, I recognize that it is critical to allow prisoners who are truly innocent - as opposed to simply protesting some procedural technicality - the opportunity to prove it at every point in the process. For this reason, at every point, the Streamlined Procedures Act allows actual innocence claims to move forward unimpeded.

We all want to make sure that no innocent person is executed. But there’s also a need for closure for victims and their families, which can only be accomplished by reducing the backlog of habeas petitions. It has often been said that justice delayed is justice denied. That’s every bit as true for crime victims as it is for criminal defendants.

Senator Jon Kyl, a Republican, represents Arizona in the U.S. Senate. He serves on the Senate Judiciary Committee, the Finance Committee, and the Energy and Natural Resources Committee.