Misgivings raised as U.S. prepares to speed death penalty appeals

The Associated Press
Friday, August 31, 2007

WASHINGTON: Since capital punishment was reinstated in the United States three decades ago, 124 people awaiting execution have been exonerated. For some prisoners, the appeals process provided time to prove their innocence.

Now a move by the government to speed up appeals has alarmed death penalty opponents, and even some supporters, who worry that innocent people could be put to death.

The unease involves a new law that would give the U.S. attorney general, instead of judges, the power to shorten some deadlines for appeals if programs are established to ensure convicts get competent lawyers.

Supporters of the law argue that families of victims suffer when executions are delayed, because they have to wait for perpetrators to face justice. Proponents also say that the long wait between sentencing and execution blunts the deterrent effect they believe makes criminals think twice before murdering.

"These cases are being reconsidered in a lot more detail than they need to be," says Kent Scheidegger, legal director of the Criminal Justice Legal Foundation, a victims' rights group based in California. "Justice can't take this long."

Some lawmakers, defense lawyers and human rights groups believe the attorney general, as the supervisor of U.S. prosecutors, should not be made responsible for ensuring the rights of convicts.

Some of these opponents hope Monday's resignation of Attorney General Alberto Gonzales could provide an opportunity to alter or repeal the law.

The law, approved last year but not yet implemented, would affect only appeals in state courts, which try most death penalty cases. Thirty-eight of 50 U.S. states allow the death penalty, though some have suspended executions. While polls show most Americans favor capital punishment, support has been eroding amid reports of injustices.

Among the concerns, some death row convicts have lost their chances to appeal because of mistakes by state-appointed lawyers. Last year, the American Civil Liberties Union documented 16 death penalty cases in Florida alone, where lawyers missed deadlines.

Critics of the law say that moving up deadlines without guaranteeing that defendants have competent lawyers would be reckless.

Death-row inmates spend an average of 10.5 years in the legal system before execution, according to the Death Penalty Information Center, a research group that opposes capital punishment. The 124 people who were exonerated spent an average of 9.2 years to overturn their sentences, the center says.

"If you speed it up, you are going to make more mistakes and execute innocent people," said Brian Evans of Amnesty International.

The chairman of the Senate Judiciary Committee, Democrat Patrick Leahy, recently told The Associated Press that he would use hearings to expose the law's problems and push to repeal it. He could have an opportunity to raise the issue when his panel holds confirmation hearings for nominees to replace Gonzales and for other vacant senior Justice Department posts.

Although the law has been passed, the Justice Department has not finished writing the rules needed to implement it. Nevertheless, a published draft of those rules already has heightened concerns.

On Monday, the American Bar Association, the U.S. legal profession's largest association, called the rules "deeply and fundamentally flawed" for not ensuring that convicts have competent attorneys.

"The rules open the scary possibility that the states are going to wave their arms, and the Department of Justice is just going to let them speed appeals," said Robert Litt, a criminal defense lawyer who helped write the ABA comments.

A Justice Department spokesman, Erik Ablin, would not comment on the ABA's criticism but said the department would consider it before completing its rules.

States were given the opportunity to try to speed appeals under a 1996 law. But they have been unable to take advantage of the law because federal judges have repeatedly found that states did not provide sufficient legal protections to defendants.

"Now instead of making states do better, you are changing who decides," said Richard Dieter, executive director of the Death Penalty Information Center.

Bruce Fein, a senior Justice Department official under the late Republican President Ronald Reagan, supports the death penalty. But he agrees that the attorney general should not have this power to shorten appeal deadlines.

"Judges — since it's their business — pay attention to the law," he said. "But the motivation of an attorney general in making this decision could be: 'Let's show that we are tough on criminals.'"