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New Rules Could Shorten Death-Row Inmates’ Appeal Time

August 23, 2007 at 6:35 PM EDT
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RAY SUAREZ: Rules currently under consideration at the Justice Department would give Attorney General Alberto Gonzales new powers that could ultimately limit the time inmates spend on appeal on death row. Today, on average, that’s just over 10 years.

Under the new arrangement, Justice Department officials would be able to fast-track the death row appeal process if the state requests it and if the attorney general agrees the state has proper legal counsel in place for the defendants. Right now, that decision is made by a federal appeals court.

If the regulations are approved, death row inmates could have six months, rather than a year, to file appeals in the federal courts, and federal judges would have less time to consider petitions in capital cases.

Now, we get two perspectives on the new rules from Kent Scheidegger, legal director of the Criminal Justice Legal Foundation, a non-profit organization that advocates for swift and decisive punishment of criminals; and Virginia Sloan, president and founder of the Constitution Project, a Washington, D.C., non-profit that examines the fairness and accuracy of death penalty cases.

And, Kent Scheidegger, if you’re a condemned person fighting execution or a prosecutor arguing that the sentence be carried out, how would this new regulation change the way the process works?

KENT SCHEIDEGGER, Legal Director, Criminal Justice Legal Foundation: Well, the regulation doesn’t really change anything. The change has already been made by an act of Congress a year-and-a-half ago. These regulations simply implement the act of Congress, and they are basically just the mechanics of the application process.

What would happen is that federal courts would have deadlines that they would have to meet to conduct what is actually the third review of these cases that have already been reviewed twice by the state courts.

And the deadlines are not severe. The federal district court has a year and three months to do this third review of already-reviewed cases. Unfortunately, at present, the federal courts often take longer than that, especially here in the West. It’s not unusual for these cases to drag out six, seven, eight years.

Your report said the average time is 10 years. In California, it’s 20. And the courts have just taken too long with these cases.

"A disastrous limitation"

Kent Scheidegger
Criminal Justice Legal Foundation
The point was to give the states the incentive to provide qualified and adequately compensated counsel. And these regulations and the new statute only apply if the states have, in fact, done that.

RAY SUAREZ: And, Virginia Sloan, you heard Kent Scheidegger say that these new regulations, this new timetable, is not a severe one because, in fact, a condemned person has already had several bites at the apple at this point.

VIRGINIA SLOAN, President, The Constitution Project: Well, that's absolutely not true. This is a disastrous limitation on defense in capital cases. The 1996 Antiterrorism and Effective Death Penalty Act already has basically stripped the process to the bone, and this makes it even a much faster process.

And at the same time, what it does is strips the defendant of access to competent, and well-resourced, and fairly compensated lawyers. And without those competent lawyers, you really cannot have an accurate process, and you cannot have a fair process.

So these regulations and the statute that they purport to implement are really just a disaster for the fairness and accuracy of the system.

RAY SUAREZ: By saying that, it sounds like you're assuming that the lower levels of the jurisprudence are acting in bad faith, that they're going to go ahead and give substandard legal defense, for instance, to death row inmates.

VIRGINIA SLOAN: Well, that's already the case. Our indigent defense system in this country is a national disgrace, and especially when it comes to death penalty cases, even more so. Study after study and widespread, bipartisan consensus is that people charged with capital crimes simply do not get adequate representation. And the states that purport to provide representation for these people who are accused of capital crimes are not giving them the kinds of lawyers who have the appropriate skills, and resources and compensation that are needed.

These are extremely complex cases, and you need someone who is very skilled and who has the resources to do an adequate investigation and to carry out a proper defense. Otherwise, we are going to be doing what we've already been doing, which is convicting the wrong people and perhaps even executing the wrong people. Speeding up the process is only going to make that worse, and providing lawyers who simply aren't up to the task is certainly going to make that process much, much worse.

RAY SUAREZ: Well, Kent Scheidegger, that is the other moving part of this new set of rules, that the attorney general of the United States would have some oversight over whether states are providing adequate legal defense to death row inmates. Virginia Sloan, as you heard, says they're not.

KENT SCHEIDEGGER: Well, that's the whole point of the compromise. And this is a bill that originally did -- with a committee headed by retired Justice Lewis Powell, and the point was to give the states the incentive to provide qualified and adequately compensated counsel. And these regulations and the new statute only apply if the states have, in fact, done that.

It provides the incentives to those states -- and they are relatively few states -- that currently don't provide good counsel. We've done it the whole time in California, and yet we have the longest delays of anybody. So it is not true that no state provides good counsel. A number of states do. And yet that doesn't change the unconscionable delays.

Streamlining state legislation

Virginia Sloan
The Constitution Project
The Justice Department is the other side of these cases. It is completely inappropriate and completely unethical, according to a prominent group of ethicists, for the attorney general to be making the decisions in these cases.

RAY SUAREZ: Well, why do you think it's appropriate to take an authority that had been heretofore in the federal courts and give it to the attorney general of the United States? Why will that streamline California's process?

KENT SCHEIDEGGER: That's not an accurate description of what the bill did. The question of whether a court was subject to a deadline was previously vested in the very same court that was subject to the deadline. And so it's not surprising that they would go out of their way to avoid having that deadline apply to them.

The amended statute initially vested in the attorney general, but that decision is subject to review by the U.S. Court of Appeals for the District of Columbia circuit. That is the one circuit in the country that does not do any of these cases; that is the place for a fair and neutral decision on whether the state has, in fact, qualified.

We had a decision from the state of Arizona, from the Ninth Circuit, where they had, in fact, complied with every requirement that Congress specified, and yet the federal court that would have been subject to the deadline still denied them the application of that law. That wasn't a fair decision, and it needed to be taken away from them.

RAY SUAREZ: Virginia Sloan, I heard you trying to get in there. Go ahead.

VIRGINIA SLOAN: If Mr. Scheidegger thinks that the federal courts are not impartial and a fair decisionmaker, I cannot imagine why he thinks the attorney general of the United States would be. The Justice Department is often a party to these cases and, in the past 10 years, has consistently opposed every case brought by a person who's been convicted of a capital crime, claiming that his or her lawyer did not provide at adequate representation.

The Justice Department is the other side of these cases. It is completely inappropriate and completely unethical, according to a prominent group of ethicists, for the attorney general to be making the decisions in these cases.

Furthermore, while these concerns would apply whether you have a Democratic or a Republican administration, we have right now an attorney general whose credibility has been questioned by both Republicans and Democrats and who has been cited for overturning the decisions of U.S. attorneys around the country who decided not to pursue a capital case against certain defendants, and he has overturned those decisions. And there's been a lot of concern that he's done so on partisan or political grounds.

The attorney general is simply not the person to be making the decisions about whether a state is providing adequate, competent lawyers for people on death row.

The power of the attorney general

Kent Scheidegger
Criminal Justice Legal Foundation
As far as the attorney general personally, you know, he really is not a strong advocate of the death penalty. Nobody has been executed in the federal system during his tenure. He has not pushed for those cases.

RAY SUAREZ: Well, Kent Scheidegger, Ms. Sloan puts two issues on the table, one, whether it's appropriate for the chief prosecutor of the United States to have some say, some judgment power, over whether states are providing adequate legal defense to death row inmates, another criticism based on who is attorney general at the moment. Why don't you quickly take them both on?

KENT SCHEIDEGGER: Ms. Sloan's statement that the federal government is a party to these cases is simply false. These are cases of a state against a person who's committed murder in that state. The United States is not a party. The U.S. DOJ is not a party. So that is just completely false.

As far as the attorney general personally, you know, he really is not a strong advocate of the death penalty. Nobody has been executed in the federal system during his tenure. He has not pushed for those cases. So I think trying to tie this to the attorney general personally is kind of political spin.

U.S. DOJ was not behind this legislation. They didn't ask for it. They didn't particularly want it. But it is the law, and it is their responsibility, and these regulations are required by the statute. They are required to put them forward.

RAY SUAREZ: So it's your belief that it's consistent with the Constitution to take a power that's often been the purview of a federal appeals court and give it to an appointed member of the executive branch?

KENT SCHEIDEGGER: That happens all the time in administrative law with judicial review. And this statute does provide for judicial review. It is reviewed by the D.C. Circuit. It is reviewed de novo -- that is, from scratch, without any deference to the attorney general's decision. The real decisionmaker here is the U.S. Court of Appeals for the D.C. Circuit, and that is the fairest place that we can vest this decision.

The interests of the Justice Dept.

Virginia Sloan
The Constitution Project
I have no idea what Alberto Gonzales' view of the death penalty is, but I do know that there have been considerable and serious allegations that he has pushed for capital prosecutions in states that don't have the death penalty...

RAY SUAREZ: Virginia Sloan, your response?

VIRGINIA SLOAN: I completely disagree with that. First of all, the Justice Department is most certainly a party in any number of these cases because, through the Office of the Solicitor General, the department weighs in quite frequently on cases arising from the states and has consistently done so in cases where a person on death row has claimed ineffective assistance of counsel and has consistently done so on the side of the state. The Justice Department is a very interested party in these cases.

Furthermore, I have no idea what Alberto Gonzales' view of the death penalty is, but I do know that there have been considerable and serious allegations that he has pushed for capital prosecutions in states that don't have the death penalty or in cases where the U.S. attorney, who's the person on the ground in those cases, has declined to prosecute a capital case. So the Justice Department has a considerable interest on the other side of these cases and is not the neutral and impartial decisionmaker that we need here.

And in addition, it's very unclear what the role of the Court of Appeals is going to be in reviewing any decision that the attorney general makes, because the regulations and the statute itself set out no guidelines for what the state needs to show in order to try to have its system qualify or for what the attorney general needs to consider in deciding. And that case, the decision is not in any way transparent, it's not public, and it's not clear what evidence the Court of Appeals itself will consider or whether it would, in fact, defer to the Justice Department.

RAY SUAREZ: Ms. Sloan, we have to leave it there. Guests, thank you both.

KENT SCHEIDEGGER: Thank you.

VIRGINIA SLOAN: Thank you.