The Justice Department is finalizing regulations that could give Attorney General Alberto R. Gonzales (pictured) the ability to shorten the time that death row inmates have to appeal their case in federal court, a change that many critics believe will make capital punishment more unfair and inaccurate. Under the 2006 reauthorization of the Patriot Act, the Attorney General was given the power to decide whether individual states are providing adequate counsel for defendants in death penalty cases, an authority that had been held by federal judges. If a state requests it and the Attorney General agrees, the new rules drafted by the Justice Department would allow prosecutors to “fast track” procedures that shorten the amount of time those on death row have to file a federal appeal after a conviction in a state court. The change would shorten the federal appeal window from one year to six months and would impose strict guidelines on federal judges for deciding such inmates’ petitions. Elisabeth Semel, director of the Death Penalty Clinic at the UC Berkeley law school, said, “It is another means by which people are determined to shut the federal courts down to meaningful review of death penalty cases. 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.”

Semel’s concerns have been echoed by others who fear the regulation change is out of sync with growing national concerns about the death penalty, including ongoing problems with inadequate representation, wrongful convictions, and arbitrariness. For example, the proposed rules require that states establish a “mechanism” for supplying defense attorneys to those on death row in order to qualify for the expedited procedures, but the rules do not provide oversight to ensure that the appointed lawyers are competent or adequately funded. “If you are going to impose the kind of incredibly stringent deadlines that this statute imposes … you need to ensure people get adequate representation throughout the state process. This is the opportunity that the Department of Justice has missed,” said Robert Litt, a former Justice Department official representing the American Bar Assn. in the rule-making dispute. He added, “Without a set of standards to guide the attorney general, there is a tremendous potential for arbitrariness here, and to put a thumb on the scales on the side of the states.” Lawrence Fox, a Philadelphia lawyer who teaches legal ethics at the University of Pennsylvania Law School, added, “It is almost a cruel joke for Congress to have said, ‘What we would like to do is improve the way states handle these’ … and then put it in the hands of, all people, the attorney general. It really is quite extraordinary. He is the chief prosecutor of the United States. He couldn’t possibly be unbiased.” The Judicial Conference of the U.S., the policy-making arm of the federal courts, also sees problems with the proposed changes. In a letter to the Justice Department, the group noted that states could qualify for “fast track” procedures even if they do not provide lawyer services “sufficient to enable federal court litigation to proceed fairly within the expedited time period.”

Justice Department officials are seeking comment on the rules until September 23, after which they will be finalized “as quickly as circumstances allow,” according to spokesman Erik Ablin. About 3,350 people are on death row in the U.S. It is unclear how many of these cases would be affected by the proposed rule change because each state would have to apply to participate in the program.

(Los Angeles Times, August 14, 2007). See Arbitrariness, Innocence, and Representation.