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.
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