A recent edi­to­r­i­al in the Montgomery Advertiser crit­i­cized a pro­pos­al by Alabama Attorney General Luther Strange to speed up death penal­ty appeals. His pro­posed leg­is­la­tion would require two parts of the appeal process to essen­tial­ly run con­cur­rent­ly. The edi­to­r­i­al cau­tioned that lack of ade­quate rep­re­sen­ta­tion for death penal­ty defen­dants would make the accel­er­at­ed process more prob­lem­at­ic. The paper con­clud­ed, ​“Anything that smacks of haste in cap­i­tal pun­ish­ment cas­es is inher­ent­ly trou­bling. This is a dif­fi­cult issue for the Legislature to tack­le, espe­cial­ly in an elec­tion year, when emo­tion and polit­i­cal expe­di­en­cy can form a dan­ger­ous com­bi­na­tion. If there was ever a time for sober, somber, seri­ous debate of an issue, with an unblink­ing recog­ni­tion of what is real­ly at stake, sure­ly this is it.” Read the edi­to­r­i­al below.

EDITORIAL: Proposal to speed up death penal­ty appeals troubling

“The law is a dan­ger­ous thing,” observes a char­ac­ter in the great Appalachian chron­i­cler Jesse Stuart’s nov­el ​“Taps for Private Tussie.” Indeed it is. Of all the facets of the judi­cial sys­tem, sure­ly noth­ing is more dan­ger­ous, more hor­ri­fy­ing, than the prospect of exe­cut­ing an innocent person.

It is the ulti­mate error, the one mis­take beyond any hope of human correction.

That is why we are deeply con­cerned by Attorney General Luther Strange’s pro­posed leg­is­la­tion to accel­er­ate the appeals process in death penal­ty cas­es, and why we urge the Legislature to weigh this mea­sure with the utmost care.

Although it is easy to point to long delays in car­ry­ing out death sen­tences and eas­i­er still to sym­pa­thize with the loved ones of vic­tims, the state nonethe­less has a solemn oblig­a­tion in these cases.

As great as the oblig­a­tion for scrupu­lous­ly care­ful, respon­si­ble con­duct in depriv­ing indi­vid­u­als of lib­er­ty in oth­er crim­i­nal cas­es is, the moral oblig­a­tion in cap­i­tal pun­ish­ment cas­es is immeasurably greater.

Currently, the appeal in a death penal­ty case begins with a direct appeal address­ing issues and facts in the tri­al. That is heard by the state Court of Criminal Appeals, the Alabama Supreme Court and poten­tial­ly the U.S. Supreme Court.

After that, what is known as a Rule 32 appeal may begin, address­ing issues such as the effec­tive­ness of coun­sel and evi­dence pro­vid­ed to the defense. That is heard by a state cir­cuit court, the state Court of Criminal Appeals, the state Supreme Court and poten­tial­ly the U.S. Supreme Court.

There is a third avenue of appeal in the fed­er­al courts, where con­sti­tu­tion­al issues may be raised. The state has no say over this process, so Strange is focus­ing on the oth­er two. He pro­pos­es hav­ing them run at essen­tial­ly the same time.

Currently, the Rule 32 process can­not start until the direct appeal process is com­plet­ed. Strange’s pro­pos­al would require the defen­dant to file a Rule 32 peti­tion with­in 180 days of fil­ing the direct appeal and would require the cir­cuit court to rule on that appeal with­in 180 days of com­ple­tion of the direct appeal.

He con­tends that this ​“dual track” approach would reduce the over­all time in death penal­ty appeals while being fair to defen­dants and to the fam­i­lies of vic­tims. He’s prob­a­bly right about reduc­ing the time, although he could offer no esti­mate of how much time that might be, but we are far less con­fi­dent about the rest of it.

Death penal­ty defen­dants often have dif­fi­cul­ty get­ting ade­quate legal coun­sel as it is. This accel­er­at­ed approach seems like­ly to make that even more prob­lem­at­ic. In addi­tion, does it make sense to spend mon­ey — often state funds because so many defen­dants are indi­gent — on a Rule 32 appeal that would prove need­less if the direct appeal prevails?

The prospect of error in death penal­ty cas­es is not a far-fetched fear. As a 2012 study found, there have been numer­ous doc­u­ment­ed cas­es in recent years, includ­ing six in Alabama, in which per­sons sen­tenced to death and await­ing exe­cu­tion have been exonerated.

Anything that smacks of haste in cap­i­tal pun­ish­ment cas­es is inher­ent­ly trou­bling. This is a dif­fi­cult issue for the Legislature to tack­le, espe­cial­ly in an elec­tion year, when emo­tion and polit­i­cal expe­di­en­cy can form a dan­ger­ous com­bi­na­tion. If there was ever a time for sober, somber, seri­ous debate of an issue, with an unblink­ing recog­ni­tion of what is real­ly at stake, sure­ly this is it.

(“Editorial: Proposal to speed up death penal­ty appeals is trou­bling,” Montgomery Advertiser, January 11, 2014). Read more Editorials about the death penalty.

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