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.

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