The Justice Department is final­iz­ing reg­u­la­tions that could give Attorney General Alberto R. Gonzales (pic­tured) the abil­i­ty to short­en the time that death row inmates have to appeal their case in fed­er­al court, a change that many crit­ics believe will make cap­i­tal pun­ish­ment more unfair and inac­cu­rate. Under the 2006 reau­tho­riza­tion of the Patriot Act, the Attorney General was giv­en the pow­er to decide whether indi­vid­ual states are pro­vid­ing ade­quate coun­sel for defen­dants in death penal­ty cas­es, an author­i­ty that had been held by fed­er­al judges. If a state requests it and the Attorney General agrees, the new rules draft­ed by the Justice Department would allow pros­e­cu­tors to ​“fast track” pro­ce­dures that short­en the amount of time those on death row have to file a fed­er­al appeal after a con­vic­tion in a state court. The change would short­en the fed­er­al appeal win­dow from one year to six months and would impose strict guide­lines on fed­er­al judges for decid­ing such inmates’ peti­tions. Elisabeth Semel, direc­tor of the Death Penalty Clinic at the UC Berkeley law school, said, ​“It is anoth­er means by which peo­ple are deter­mined to shut the fed­er­al courts down to mean­ing­ful review of death penal­ty cas­es. 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.”

Semel’s con­cerns have been echoed by oth­ers who fear the reg­u­la­tion change is out of sync with grow­ing nation­al con­cerns about the death penal­ty, includ­ing ongo­ing prob­lems with inad­e­quate rep­re­sen­ta­tion, wrong­ful con­vic­tions, and arbi­trari­ness. For exam­ple, the pro­posed rules require that states estab­lish a ​“mech­a­nism” for sup­ply­ing defense attor­neys to those on death row in order to qual­i­fy for the expe­dit­ed pro­ce­dures, but the rules do not pro­vide over­sight to ensure that the appoint­ed lawyers are com­pe­tent or ade­quate­ly fund­ed. ​“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. This is the oppor­tu­ni­ty that the Department of Justice has missed,” said Robert Litt, a for­mer Justice Department offi­cial rep­re­sent­ing the American Bar Assn. in the rule-mak­ing dis­pute. He added, ​“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.” Lawrence Fox, a Philadelphia lawyer who teach­es legal ethics at the University of Pennsylvania Law School, added, ​“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. It real­ly is quite extra­or­di­nary. He is the chief pros­e­cu­tor of the United States. He could­n’t pos­si­bly be unbi­ased.” The Judicial Conference of the U.S., the pol­i­cy-mak­ing arm of the fed­er­al courts, also sees prob­lems with the pro­posed changes. In a let­ter to the Justice Department, the group not­ed that states could qual­i­fy for ​“fast track” pro­ce­dures even if they do not pro­vide lawyer ser­vices ​“suf­fi­cient to enable fed­er­al court lit­i­ga­tion to pro­ceed fair­ly with­in the expe­dit­ed time peri­od.”

Justice Department offi­cials are seek­ing com­ment on the rules until September 23, after which they will be final­ized ​“as quick­ly as cir­cum­stances allow,” accord­ing to spokesman Erik Ablin. About 3,350 peo­ple are on death row in the U.S. It is unclear how many of these cas­es would be affect­ed by the pro­posed rule change because each state would have to apply to par­tic­i­pate in the pro­gram.

(Los Angeles Times, August 14, 2007). See Arbitrariness, Innocence, and Representation.

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