Gonzales Could Get Say In States' Executions

Proposed rules would let the attorney general sign off on 'fast tracking' death penalty appeals.

The LATimes reports:

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.

The move to shorten the appeals process and effectively speed up executions comes at a time of growing national concern about the fairness of the death penalty, underscored by the use of DNA testing to establish the innocence of more than a dozen death row inmates in recent years.

Amid the public debate, the number of people executed in the U.S. has declined steadily since the mid-1990s.

California and several other states have moratoriums on lethal injections, stemming from legal challenges. Opponents say the way the states administer a three-drug lethal cocktail unnecessarily risks excessive pain for the inmate and therefore violates the constitutional bar against cruel and unusual punishment.

A federal judge in San Jose, citing a lack of training and supervision of the execution team, ruled California's application of lethal injections unconstitutional. State officials have proposed changing procedures to try to address the judge's concerns. A hearing is in October.

Prosecutors say many death penalty cases take far too long to resolve even when the issue of guilt is clear. Especially in the West, where the U.S. 9th Circuit Court of Appeals in San Francisco has blocked many executions, cases can take decades to wind through the courts. In its most recent term, the U.S. Supreme Court restored the death penalty in three cases in which the 9th Circuit had reversed the sentence.

One of the cases involved a two-time Arizona murderer who told the sentencing judge: "If you want to give me the death penalty, just bring it right on." He was sentenced in 1990.

Some Arizona officials say the new procedures are long overdue. "If you are going to have the death penalty at all, it shouldn't take 20 to 25 years," said Kent Cattani, the chief capital litigation counsel in the Arizona attorney general's office. "Either get rid of it altogether, or try to have a good system in state courts and then accelerate it through the federal courts."

On the other side, advocates for death row inmates and some legal experts say the rules would make a bad system worse.

"It is another means by which people are determined to shut the federal courts down to meaningful review of death penalty cases," said Elisabeth Semel, director of the Death Penalty Clinic at the UC Berkeley law school. "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."

"This is the Bush administration throwing down the gauntlet and saying, 'We are going to speed up executions,' " said Kathryn Kase, a Houston lawyer and co-chair of the death-penalty committee for the National Assn. of Criminal Defense Lawyers.

About 3,350 people are on death row in the U.S., including more than 600 in California. Most were sentenced in state courts, but death cases almost always end up being reviewed by federal judges too.

It is impossible to estimate how many inmates might be affected. Some with appeals pending could see their cases shortened.

"Cases in the system for 20 years in federal court, it will not affect those," said Cattani. But "it will prevent those from happening in the future."

The procedures would cut to six months, instead of a year, the time that death row inmates have to file federal appeals once their cases have been resolved in the state courts.

It would also impose strict guidelines on federal judges for deciding such inmates' petitions. Federal district judges would have 450 days, appeals courts 120 days. Proponents say that would prevent foot-dragging by liberal judges.

The costs associated with the death penalty have also been a growing concern to some states. California, for example, spends $90,000 more a year on housing a death row inmate than an inmate in the general prison population — adding up to $57.5 million annually — according to a 2005 study by The Times.

The idea behind the new rules has been years in the making. The federal Anti-Terrorism and Effective Death Penalty Act of 1996 set up a system in which states could take advantage of faster procedures so long as they could prove they had made sure defendants had had adequate counsel in state courts. California and several other states applied to the program starting in the late 1990s. But federal courts ruled that they were not doing enough to provide defendants with competent attorneys.