Monday, August 20, 2007

Greasing the Wheels on the Machinery of Death

Published: August 20, 2007

Death penalty cases can take a long time. Attorney General Alberto R. Gonzales wants to move things along.

Under an odd provision in last year’s reauthorization of the USA Patriot Act, the antiterrorism law, the attorney general is to take on a role that has for more than a decade belonged to the courts. After the Justice Department finishes writing the regulations, Mr. Gonzales will get the job of deciding whether states are providing condemned inmates with decent lawyers.

If the answer is yes, federal litigation in capital cases from those states — one of the main reasons for the lengthy appeals — will move to a fast track. Inmates will have to file habeas corpus challenges in six months rather than a year, and judges will be subject to strict deadlines. Appeals courts, for instance, will get 120 days to decide cases.

The trade-offs themselves are not new, and they are not necessarily a problem. If states can be encouraged to provide able defense lawyers to death row inmates in state proceedings, the federal courts may indeed have less to worry about.

But giving the power to decide when a fast track is warranted to an interested party like Mr. Gonzales is a curious way to run a justice system.

“A first-year law student could spot this conflict of interest a mile away,” said Elisabeth Semel, the director of the death penalty clinic at the University of California, Berkeley, and an opponent of the death penalty.

The move can only represent Congressional dissatisfaction with the decisions of the dozens of federal judges who have considered the adequacy of state systems to provide death row inmates with qualified defense teams over the last decade.

With one partial exception, they have found that the states are not yet where they should be. (The exception is Arizona, which a federal appeals court said had an adequate system on paper, at least as of 1998, though the court also ruled that the system had not been followed in the case before it.)

Opponents of the death penalty say Congress wants Mr. Gonzales to speak power to truth.

“After the courts had repeatedly found that the states were not providing competent defense representation in capital cases, Congress decided to solve the problem by the simple device of having the attorney general announce that it did not exist,” said Eric M. Freedman, a law professor at Hofstra who submitted testimony opposing a version of the new law for the American Bar Association in 2005.

“The attorney general can certify that the moon is made of green cheese, but that will neither make it so nor advance scientific knowledge,” Professor Freedman said. “The way to fix capital defense systems is not to deny that they need fixing, but rather to dedicate the needed resources to improving them.”

There is also some evidence that the law is a solution in search of a problem. In 1996, Congress imposed new time limits for filing capital cases and severely cut back on the kinds of issues the federal courts may consider. That law has had a significant impact, according to a study by Professor Freedman and David R. Dow, a law professor at the University of Houston, to be published next year by the Carolina Academic Press.

Before the 1996 law, death row inmates who filed habeas corpus petitions in federal court succeeded in overturning their convictions or death sentences about 40 percent of the time. According to the study, which looked at the years 2000 through 2006, that number has dropped to 12 percent. And it continues to fall.

“Federal courts now grant relief at a very small rate — far smaller than they would if they had the power to correct significant constitutional violations,” Professor Dow said, “but Congress has already deprived federal courts of their power to grant relief in most cases, even where the court believes that a significant error has occurred.”

These days, federal courts in the generally conservative Fourth Circuit, which covers Virginia and four other states, grant habeas petitions from death row inmates 2 percent of the time. In the more liberal Ninth Circuit, which covers California and eight other Western states, petitioners succeed 35 percent of the time.

The new law was pushed by legislators and prosecutors in Arizona and California, and it is an expression of their frustration with the Ninth Circuit. Elsewhere in the country, the machinery of death is humming along. In Virginia, for instance, people convicted of capital crimes are executed, on average, in seven years.

California, by contrast, seldom executes anyone. It has some 660 people on its death row and has executed 13 people since the United States Supreme Court reinstated capital punishment in 1976.

It is true that the capital justice system is not efficient. But efficiency cannot be the only goal. Accuracy must matter, too.

“The notion that the federal government wants to accelerate executions in the face of known mistakes, and wants to do so just as DNA is becoming available in more and more cases, is mind-boggling,” Professor Dow said. “It will increase the risk that some state executes a person we later find to be innocent.”

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