« Seeking solutions to Oklahoma's prison problems | Main | A new sports anthem: Please pleas me »

August 15, 2007

Speeding up the fast track to more capital litigation

The blogosphere is buzzing (at TalkLeft, Volokh and ACS) about this strong article from the Los Angeles Times discussing the new proposed rules that enables the attorney general sign off on 'fast tracking' death penalty appeals under the AEDPA.  Here are snippets from the LA Times piece:

The Justice Department is putting the final touches on regulations that could give Atty. Gen. Alberto R. Gonzales important new sway over death penalty cases in California and other states, including the power to shorten the time that death row inmates have to appeal convictions to federal courts.

The rules implement a little-noticed provision in last year's reauthorization of the Patriot Act that gives the attorney general the power to decide whether individual states are providing adequate counsel for defendants in death penalty cases. The authority has been held by federal judges.

Under the rules now being prepared, if a state requested it and Gonzales agreed, prosecutors could use "fast track" procedures that could shave years off the time that a death row inmate has to appeal to the federal courts after conviction in a state court.... Under the law, the attorney general's decision could be challenged before the federal appeals court in Washington....

Some critics question whether the rules would have the desired effect. The rules would require that states establish a "mechanism" for supplying lawyers to death row inmates in order to qualify for the expedited procedures but would not ensure that the lawyers were competent or adequately funded, these critics say.

Though I have many concerns about how AG Gonzales has handled various sentencing issues, I think these new fast-track rules are likely to end up being much ado (and much litigation) about nothing.  The AEDPA law passed during the Clinton Administration was designed to speed up federal appeals of state capital cases, and its biggest impact has been the creation of more time-consuming litigation.  I suspect the new fast-track rules will simply bring faster litigation well before it brings faster executions.

Some recent related posts:

August 15, 2007 at 08:48 AM | Permalink


TrackBack URL for this entry:

Listed below are links to weblogs that reference Speeding up the fast track to more capital litigation:


I agree. If the DOJ goes through with it, and states actually want to go down this road, it will create *more* litigation on several fronts. (And the most states have not even tried to fall wihin the current "fast-track" regime.)

Strangely, if states want to try this, it will probably result in some arguments being made about how the inadequate is adequate, which should be amusing.

Posted by: S.cotus | Aug 15, 2007 10:09:33 AM

The reason that AEDPA has created so much "time consuming litigation" is the absolute refusal of certain federal judges to follow its mandate.

Posted by: federalist | Aug 15, 2007 12:08:49 PM

A bigger impact of AEDPA has been to deny relief where it should obviously be given on account of the SCOTUS's not having seen that precise fact pattern before.

Posted by: rothmatisseko | Aug 15, 2007 12:41:57 PM

I really wish we as a country could find a way to break the logjam that exists with capital sentencing litigation. Executing more murderers would act as a real deterrent, and would therefore save innocent lives.

Posted by: William Jockusch | Aug 15, 2007 12:58:03 PM

Care to give us an example, rothmatisseko? The Supreme Court has been very clear that precise matching of the fact pattern is not required.

Posted by: Kent Scheidegger | Aug 15, 2007 1:29:56 PM

The recent legislation is yet another reaction to the inability of the federal courts (as a whole) to properly apply federal habeas. What did the courts expect, Congress simply to acquiesce to the wholesale flouting of the law? When responsible critics acknowledge the abuses that have gone on, even under AEDPA (e.g., Kevin Cooper, John Byrd) or that many judges are blowing off its provisions (e.g., Getsy), then maybe we will listen to them whine about the meanie DOJ trying to speed up these cases.

As for Specter and Leahy, I am sure that Gonzales has duly noted their concerns.

Posted by: federalist | Aug 15, 2007 5:35:25 PM

´╗┐As the accused sister, pd's main assistant for 4 years, state and defense witness- waiting for execution of my brother now, I can't help but agree it would be most amusing to watch the states now try to explain how adequate the inadequate is. Through my experience I have realized that the Judges, DA's, and local PD's work an a daily bases with each other where the crimes are committed. Major politics. They become established in routines- political influence is rampant with all parties being so closely related. No one is there to police and monitor capital cases. Often, localities just want to process the accused and move them on- a way that was long predetermined before trial. Local Judges have no motivation to make sure the defendant's have the same funding and forensics as
the state. Some PD' Chief's refuse to fund the defense's with any more than one capital defense attorney- period. A percentage of these defendants have no idea they have a right to a proper defense. Judges act on behalf of the DA's. It all starts with the errors of the local districts where no one is there to enforce the Constitutional rights from the get go, from the day of arrest. The law (peolple we see as the Justice department) does not enforce the laws they create. From the FBI, the DA, the PD, the Local Sheriff, the Warden, and often the police. The states need to level the playing ground, and PD's representing capital defendants should not be of the same local as the DA- Sheriff and Judge-not to mention the jury too, for they are the underdog. There must be a overhaul of ethics on the local levels for the constitutional laws to be applied.
I had to write the state's aclu administrator just to get any kind of defense funding after having witnessed the way the DP process REALLY works.

Also, a president of origin from the state with the record highest execution rate should not have the majority say on time line of appeals in capital cases. There are 49 other states not represented here. I hope those senators will speak
loud enough to be heard, and let the true majority rule.

Posted by: C Landry | Aug 15, 2007 11:37:36 PM

Post a comment

In the body of your email, please indicate if you are a professor, student, prosecutor, defense attorney, etc. so I can gain a sense of who is reading my blog. Thank you, DAB