Execution rules may change
Published 9:00 pm Monday, August 13, 2007
WASHINGTON – The Justice Department is putting the final touches on regulations that could give Attorney General Alberto Gonzales important new sway over death penalty cases, including the power to shorten the time death row inmates have to appeal convictions to federal courts.
The rules implement a little-known provision in last year’s re-authorization of the USA Patriot Act that give the attorney general the power to decide whether individual states are providing adequate counsel for defendants in death cases. The authority was held previously by federal judges.
Under the rules now being prepared, if a state requested it and Gonzales agreed, prosecutors could use so-called “fast track” procedures that could shave years off the time that a death-row inmate has to appeal to the federal courts after conviction in a state court.
The move to shorten the appeals process and effectively speed up executions comes at a time of growing national concern about the fairness of the death penalty, underscored by the use of DNA testing to establish the innocence more than a dozen death-row inmates in recent years. Amid the public debate, the number of people executed in the U.S. has declined steadily since the mid 1990s.
Several states that put inmates to death using lethal injection have de facto moratoriums on the practice stemming from legal challenges alleging that the way the states administer a three-drug cocktail presents an unnecessary risk that the inmate will be subjected to excessive pain in violation of the constitutional bar against cruel and unusual punishment.
Prosecutors say many death-penalty cases take far too long to resolve, even when the issue of guilt is clear. Especially in the West, where the San Francisco-based federal appeals court for the 9th U.S. Circuit has blocked many executions, cases can take decades to wind through the courts. The U.S. Supreme Court this past term restored the death penalty in three 9th Circuit cases in which a capital sentence had been reversed.
Arizona officials say they believe the new procedures are long overdue. “If you are going to have the death penalty at all, it shouldn’t take 20 to 25 years,” said Kent Cattani, the chief capital litigation counsel in the Arizona attorney general’s office. “Either get rid of it altogether or try to have a good system in state courts and then accelerate it through the federal courts.”
On the other side, advocates for death-row inmates and some legal experts say the rules would only make a bad system worse.
“It is another means by which people are determined to shut the federal courts down to meaningful review of death penalty cases,” said Elisabeth Semel, director of the death-penalty clinic at the University of California, Berkeley, law school. “The inevitable result of speeding them up is to miss profound legal errors that are made. Lawyers will not see them. Courts will not address them.”
“This is the Bush administration throwing down the gauntlet and saying, ‘We are going to speed up executions,’” said Kathryn Kase, a Houston lawyer and co-chair of the death-penalty committee for the National Association of Criminal Defense Lawyers.
