The Washington Post recently published an editorial calling for Congress to rewrite the part of the Anti-Terrorism and Effective Death Penalty Act of 1996 that governs legal representation for indigent death-penalty defendants. The law allows a fast-track for federal appeals of state capital convictions provided states guarantee and pay for a system of legal representation that covers all capital defendants . Originally, the program had to be certified by the federal courts. In 2006, Congress changed the law, giving the U.S. Attorney General the authority to certify a state that “‘established a mechanism for the appointment of counsel for indigent prisoners under sentence of death’ and has set up a ‘mechanism for compensation’ for appointed attorneys.” According to the editorial, “These provisions are so lax that choosing lawyers by shoe size and paying them with bubble gum could meet the test.”

The new rules are currently on hold and are under reconsideration by Attorney General Eric Holder. The editorial suggests stricter standards, such as requiring that lawyers who take assignments under the fast-track program have significant experience handling death penalty cases. However, it ultimately concludes that the law itself should be abandoned: “[A]ll of the administrative tinkering in the world cannot fix what is most wrong with the current law… states should not be in the business of truncating even further what for many is a last, best hope for justice.” Read full editorial below.

June 21, 2010
Congress must rewrite the law governing lawyers for poor death-row inmates

There is something disturbing and distasteful about allowing states to take shortcuts in their quests to put convicts to death. But that is the essence of a deal Congress struck with the states in the mid-1990s. States that guaranteed and paid for a robust system of legal representation for poor death-row inmates could fast-track federal appeals of state capital-punishment convictions. To qualify, a legal defense program had to be certified as acceptable by the federal courts.

After nearly a decade, not a single state qualified. Some in Congress blamed the courts, arguing that judges were either imposing standards that were impossible to meet or were blocking certification because they objected to shortened court deadlines. In truth, the few states that applied for the program often had the biggest death-row dockets and the worst indigent defense systems. The courts, in other words, were right to reject these applications.

This did not sit well with some in Congress, which changed the law in 2006 to give the U.S. attorney general — and not the courts — the authority to certify the programs. The attorney general now is obligated to approve an application if the state has “established a mechanism for the appointment of counsel for indigent prisoners under sentence of death” and has set up a “mechanism for compensation” for appointed attorneys.

These provisions are so lax that choosing lawyers by shoe size and paying them with bubble gum could meet the test. In its waning days, the Bush administration only made matters worse by issuing rules for implementing the law that failed to provide clear and robust guidance or standards. A federal trial court judge put the rules on hold and Attorney General Eric H. Holder Jr. is rightly rethinking them. He should take this opportunity to insist, for example, that lawyers who take assignments under the fast-track program have significant experience handling death-row cases.

But all of the administrative tinkering in the world cannot fix what is most wrong with the current law. No attorney general — a prosecutor, after all — should have the power to decide whether a state’s legal defense system is up to snuff. More fundamentally, legal changes in the 1990s already shortened the time a death-row inmate has to file a federal appeal; states should not be in the business of truncating even further what for many is a last, best hope for justice. Congress should ditch this program.

(Editorial, “Congress must rewrite the law governing lawyers for poor death-row inmates,” Washington Post, June 21, 2010). See Representation and Editorials.

Citation Guide