Death row not day at the races

Death row not day at the races


Today's paper sports a headline that would almost be laughable were it not so deadly serious. It announces that under a little-noticed provision of the Patriot Act, the Attorney General is seeking to exercise powers granted to him to "fast track" state executions of prisoners on death row.

Alberto Gonzales? A man whose judgment has been questioned by friend and foe alike, who remains in his job only because his lame-duck boss is impervious to criticism, now given new life-and-death power? This at a time when DNA evidence has repeatedly been used to prove the imperfections of the system of determining guilt, and medical questions about lethal injection as a method of execution have led to moratoriums in several states?

The new provision is the latest chapter of the ongoing effort by death penalty proponents to speed up the period between a sentence of death and its execution, which in some states can take not years but decades.

Under an earlier version of the law, new limits were established requiring a prisoner sentenced to death under state law to seek review in federal courts within a year (now six months) of the time he has exhausted his state appeals, and imposing time limits on how long federal district judges and appellate courts could take to decide the cases.

The catch was that the states had to establish that they were providing adequate assistance of counsel in state courts, which they have failed to do, according to the federal courts charged to review these claims.

What the new law does is take that decision-making authority away from the federal courts and invest it in the attorney general. His decision is subject to review only by the federal appellate court in Washington, rather than in courts around the country (most notably the Ninth Circuit, based in California) that have been consistently hostile toward the death penalty. Depending on your perspective, many have provided exacting scrutiny or dragged their heels in such cases, refusing to approve the state systems.

It should go without saying that no one should be executed where there remains any reasonable doubt about guilt or innocence. It should also go without saying, but often doesn't, that the system needs to be at its best, with well-prepared (as opposed to slumbering) lawyers and carefully reviewed decision-making in cases where there is no room for mistakes.

"Death is different," the Supreme Court observed many years ago, in insisting that the states develop new and fairer rules for its imposition.

If a state chooses to impose the death penalty, it is obliged to establish and follow procedures that only allow executions in the most heinous and clear-cut cases.