-Caveat Lector-
Begin forwarded message:
From: [EMAIL PROTECTED]
Date: August 14, 2007 7:31:02 PM PDT
To: [EMAIL PROTECTED]
Cc: [EMAIL PROTECTED], [EMAIL PROTECTED], [EMAIL PROTECTED]
Subject: Patriot Act Gives Executive Branch Control of Death
Sentencing in All 50 States
Gonzales could get say in states' executions
Proposed rules would let the attorney general sign off on 'fast
tracking' death penalty appeals.
By Richard B. Schmitt, Los Angeles Times Staff Writer
August 14, 2007
http://www.latimes.com/news/nationworld/nation/la-na-
penalty14aug14,1,4816644.story?ctrack=1&cset=true
WASHINGTON — The Justice Department is putting the final touches on
regulations that could give Atty. Gen. Alberto R. Gonzales
important new sway over death penalty cases in California and other
states, including the power to shorten the time that death row
inmates have to appeal convictions to federal courts.
The rules implement a little-noticed provision in last year's
reauthorization of the Patriot Act that gives the attorney general
the power to decide whether individual states are providing
adequate counsel for defendants in death penalty cases. The
authority has been held by federal judges.
Under the rules now being prepared, if a state requested it and
Gonzales agreed, prosecutors could use "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 of 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.
California and several other states have moratoriums on lethal
injections, stemming from legal challenges. Opponents say the way
the states administer a three-drug lethal cocktail unnecessarily
risks excessive pain for the inmate and therefore violates the
constitutional bar against cruel and unusual punishment.
A federal judge in San Jose, citing a lack of training and
supervision of the execution team, ruled California's application
of lethal injections unconstitutional. State officials have
proposed changing procedures to try to address the judge's
concerns. A hearing is in October.
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 U.S. 9th Circuit Court of Appeals in San Francisco
has blocked many executions, cases can take decades to wind through
the courts. In its most recent term, the U.S. Supreme Court
restored the death penalty in three cases in which the 9th Circuit
had reversed the sentence.
One of the cases involved a two-time Arizona murderer who told the
sentencing judge: "If you want to give me the death penalty, just
bring it right on." He was sentenced in 1990.
Some Arizona officials say 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 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
UC 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 Assn. of Criminal Defense Lawyers.
About 3,350 people are on death row in the U.S., including more
than 600 in California. Most were sentenced in state courts, but
death cases almost always end up being reviewed by federal judges too.
It is impossible to estimate how many inmates might be affected.
Some with appeals pending could see their cases shortened.
"Cases in the system for 20 years in federal court, it will not
affect those," said Cattani. But "it will prevent those from
happening in the future."
The procedures would cut to six months, instead of a year, the time
that death row inmates have to file federal appeals once their
cases have been resolved in the state courts.
It would also impose strict guidelines on federal judges for
deciding such inmates' petitions. Federal district judges would
have 450 days, appeals courts 120 days. Proponents say that would
prevent foot-dragging by liberal judges.
The costs associated with the death penalty have also been a
growing concern to some states. California, for example, spends
$90,000 more a year on housing a death row inmate than an inmate in
the general prison population — adding up to $57.5 million annually
— according to a 2005 study by The Times.
The idea behind the new rules has been years in the making. The
federal Anti-Terrorism and Effective Death Penalty Act of 1996 set
up a system in which states could take advantage of faster
procedures so long as they could prove they had made sure
defendants had had adequate counsel in state courts. California and
several other states applied to the program starting in the late
1990s. But federal courts ruled that they were not doing enough to
provide defendants with competent attorneys.
Frustrated with the pace of changes — and believing that judges
were part of the problem — death penalty advocates Rep. Dan Lungren
(R-Gold River) and Sen. Jon Kyl (R-Ariz.) led a successful effort
to include language in the Patriot Act last year that let the
attorney general, rather than judges, decide whether states were
ensuring death row inmates had adequate legal representation.
Under the law, the attorney general's decision could be challenged
before the federal appeals court in Washington.
Justice Department officials are seeking public comment on the
rules until Sept. 23, after which they will be finalized "as
quickly as circumstances allow," said department spokesman Erik Ablin.
Some critics question whether the rules would have the desired
effect. The rules would require that states establish a "mechanism"
for supplying lawyers to death row inmates in order to qualify for
the expedited procedures but would not ensure that the lawyers were
competent or adequately funded, these critics say.
Arizona and California have state-supported programs that aid
defense counsel in capital cases, but there are still not enough
lawyers to go around. And funding for legal bills and other
expenses is far from adequate, lawyers for death row inmates say.
"If you are going to impose the kind of incredibly stringent
deadlines that this statute imposes . . . you need to ensure people
get adequate representation throughout the state process," said
Robert Litt, a former Justice Department official representing the
American Bar Assn. in the rule-making dispute. "This is the
opportunity that the Department of Justice has missed."
He said: "Without a set of standards to guide the attorney general,
there is a tremendous potential for arbitrariness here, and to put
a thumb on the scales on the side of the states."
The Judicial Conference of the U.S., the policy-making arm of the
federal courts, also sees problems.
States might be able to qualify even if they had not provided
lawyer services "sufficient to enable federal court litigation to
proceed fairly within the expedited time period," the group said in
a letter to the Justice Department this month.
Critics also say there is a major conflict of interest for the
nation's top law enforcement officer to judge the qualifications of
lawyers defending people whom government officials are seeking to
put to death.
Others have doubts about giving Gonzales in particular more power.
His judgment has been challenged over his handling of the firing of
eight U.S. attorneys last year, among other matters.
Death penalty foes also say his record on the issue inspires no
confidence that the rules will be administered fairly. As legal
advisor to then-Texas Gov. George Bush in the 1990s, he gave what
many saw as cursory treatment of clemency petitions of capital
defendants whom the state subsequently put to death.
"It is almost a cruel joke for Congress to have said, 'What we
would like to do is improve the way states handle these' . . . and
then put it in the hands of, all people, the attorney general,"
said Lawrence Fox, a Philadelphia lawyer who teaches legal ethics
at the University of Pennsylvania Law School. "It really is quite
extraordinary. He is the chief prosecutor of the United States. He
couldn't possibly be unbiased."
Fox said he would have problems with any attorney general wielding
that power.
Under the proposed rules, each state, through its attorney general,
would have to apply to the Justice Department to be included in the
program.
Besides Arizona, where 114 prisoners are on death row, Texas,
Oklahoma, Pennsylvania and other states have shown interest in the
new procedures.
It's unclear whether California would apply. Atty. Gen. Jerry Brown
is an avowed opponent of the death penalty, but many staff
attorneys support the rule, and Brown has said he will not allow
his personal feelings to affect his judgment about enforcing the law.
[EMAIL PROTECTED]
Times staff writer Henry Weinstein in Los Angeles contributed to
this report.
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