No Holds Barr-ed: Former Clinton Impeachment Prosecutor Takes Aim at Justice Scalia on Habeas Corpus

I doubt anyone would accuse Bob Barr of being a liberal. You will remember him as having served as a Republican Congressman from Georgia, and being a leader in the fight to impeach President Bill Clinton and remove him from office. He was also a leading sponsor of the Federal Defense of Marriage Act, trying to forestall the movement for gay and lesbian marriage. Mr. Barr later ran for President in 2008 as the nominee of the Libertarian Party.

As a Congressman, Mr. Barr was one of the authors of the Anti-Terrorist and Effective Death Penalty Act (AEDPA), which was on the the low points of the Clinton Administration. In particular, it stripped many of the protections of the writ of habeas corpus, the grounds for Federal review of convictions and sentences imposed by State courts.

But, according to Mr. Barr, Justice Scalia has gone too far in interpreting ADEPA. Today, Mr. Barr published a Washington Times Op-Ed piece criticizing Justice Scalia's dissent in the recent Troy Davis case. Justice Scalia claimed that, in light of ADEPA, even evidence of actual innocence is not sufficient to justify a second petition for writ of habeas corpus.

Barr dissents from Justice Scalia's dissent. In the Washington Times piece, he notes first that "The conviction was subsequently upheld on appeals. However, the fact that seven of nine of those eyewitnesses have recanted their testimony, coupled with the fact that none of the state or federal courts have yet heard directly from any of those witnesses, presented to the Supreme Court a strong argument that Davis should at least be allowed to make such a case [of actual innocence of the crime]."

Then, saying that the Troy Davis dissent "cemented Justice Antonin Scalia's reputation as the high court curmudgeon," Mr. Barr trained his sights directly on the Justice:

Specifically, Justice Scalia said that AEDPA barred a habeas corpus writ regarding any state court claim unless based on "... a decision that was contrary to, or involved an unreasonable application of, clearly established federal law." Justice Scalia surmised that, since the Supreme Court "has never held that the Constitution forbids the execution of a convicted defendant who ... is later able to convince a habeas court that he is 'actually' innocent ... ," Davis is simply out of luck.

The Constitution of the United States was adopted in 1787; the Bill of Rights four years later in 1791. Apparently for Justice Scalia, these past 218 years have not sufficed to "clearly establish" that federal law is based on the premise that only the guilty are to be executed.

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I was a member of the U.S. House of Representatives Judiciary Committee in 1996 when we debated and voted on AEDPA. I can state unequivocally that this legislation was not intended to preclude a claim of actual innocence based on post-sentence evidence from being considered in a habeas petition. Employing such a pinched and erroneous reading of the law to deny a condemned man the opportunity to present substantial evidence of innocence would constitute a major travesty of justice in America.

Amazing world we live in, isn't it? We have to debate whether a strong claim of actual innocence justifies a re-examination of the death sentence?

Thankfully, whether libertarian or liberal, many thoughtful citizens can join hands to fight for the Great Writ, as our last bulwark against capricious Government power.

Way to go, Mr. Barr. Keep firing away.

H/t to The Constitution Project