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March 6, 2007

Documenting and dissecting death's delay

I am very pleased to see that Barry Latzer is guest-blogging about his new death penalty study at Crime & Consequences.  His co-authored study, which can be accessed here, is entitled Justice Delayed? Time Consumption in Capital Appeals: A Multistate StudyThis USA Today article provided some highlights from the study, and Professor Latzer does so more systematically in his post at C&C.

I am still trying to find time to read the full report, but my cursory review of the findings suggests that the study documents lots of important data and has lots of important insights about post-conviction death penalty realities.  I hope to discuss these data and insights a lot in future posts, but let me first just spotlight Professor Latzer's "recommended two general reforms to expedite the direct appeals process:"

First, eliminate intermediate court review.  Alabama and Tennessee are the only states that use a two-step capital appeals process: intermediate appellate review followed by high court review. While some judges on the courts of last resort said they appreciated the narrowing of the issues and the second opinion provided by the intermediate courts, the significant time increment far outweighs this benefit.  Direct COLR review is much more efficient.

Second, the states should adopt rules or statutes that impose deadlines on actors in the capital appeals process.  Such deadlines work.  Those states with statutes or court rules that set reasonable but enforceable deadlines for crucial activities such as the preparation of the record, the perfecting of appellate briefs, and the resolution of the case by the appellate court, complete the direct appeals process more expeditiously.

March 6, 2007 at 05:20 PM | Permalink


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The issue with capital appeals is not the existence of deadlines, but the remedy.

A failure of defense counsel to meet a deadline (or worse, a third party's failure to meet a deadline) is almost per se ineffective assistance of counsel, and hence a denial of a constitutional right itself, if the consequence of the failure is a loss of an appeal on procedural grounds.

This doesn't mean that enforceable deadlines can't be established. In capital cases, the obvious alternative for defense counsel and/or third parties, is a contempt of court enforcement mechanism.

Posted by: ohwilleke | Mar 6, 2007 6:09:07 PM

But there's no right to effective rep in post-conviction/habeas proceedings . . . .

Posted by: federalist | Mar 7, 2007 10:36:36 PM

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