[NYTr] Don't Rush to Execution: Reject Gonzales Effort to Bend Death Penalty Rules

[All the News That Doesn't Fit]

sent by rick kissell

Los Angeles Times - Aug 16, 2007
http://www.latimes.com/news/opinion/la-oe-chemerinsky16aug16,0,6943624.story?coll=la-opinion-rightrail

Op-Ed:

Don't rush to execution

California must reject the U.S. attorney general's effort 
to bend death penalty rules.

By Erwin Chemerinsky

Atty. Gen. Alberto R. Gonzales is about to adopt an unnecessary and 
mean-spirited regulation that will make it harder for those on death
row to have their cases reviewed in federal court. State Atty. Gen.
Jerry Brown should make clear that California wants no part of this.

To understand what's going on here, you need a little background.

Let's say you were convicted of murder in California. Generally, as
soon as you have exhausted your appeals in state court, the clock
starts ticking: You have one year to file a petition for habeas corpus
in federal court. (A writ of habeas corpus is a request for federal
court review of a conviction on grounds that a person is imprisoned in 
violation of the Constitution and laws of the United States.)

That one-year timeline was set by the Anti-terrorism and Effective
Death Penalty Act, adopted in 1996. But that law also allows
a shorter time limit -- six months -- in death penalty cases.

Why less time for death penalty cases? It seems perverse, but Congress 
was actually trying to encourage states to provide lawyers for those on 
death row.

The Constitution guarantees the right to an attorney at trial when 
you're facing imprisonment or death and when you appeal your conviction 
at the state level. Beyond that, you're on your own. But the
proceedings that come next -- collectively called "collateral review"
-- can be crucial. It's at this stage, which includes habeas corpus
petitions, that serious flaws in trial are often exposed, including the
kind of mistakes that lead to the execution of innocent people.

Almost no states provide counsel in these crucial proceedings. So the 
1996 law laid out this deal: If a state starts providing lawyers to 
capital defendants, it will get the benefit of a shorter, six-month 
statute of limitations.

So far, only Arizona has complied. Other states have decided that it's 
not worth the expense.

Enter Gonzales and the Patriot Act.

When it reauthorized the Patriot Act last year, Congress added a 
little-noticed provision that lets the attorney general, rather than 
federal judges, decide whether states are complying with the 1996 law. 
No one paid much attention, until now.

Gonzales, it has been widely reported, is about to certify California 
and other states as being in compliance with the 1996 law, in essence 
just giving them the six-month statute of limitations. But these states 
have done nothing that this law requires. Everywhere but Arizona, death 
row inmates still have to pay for their attorneys (unlikely), get pro 
bono representation (difficult) or represent themselves (unwise). Any 
"certification" is a lie.

Those who favor the shorter statute of limitations are frustrated by
the long delays before executions are carried out. But Gonzales' move
is not about preventing delays; at most, it speeds things up by six
months. It is about preventing some inmates from having a habeas corpus
petition heard at all.

Death row prisoners will still be without free attorneys, trying to
file habeas corpus petitions on their own. But that process is rife
with complex rules and technicalities. The U.S. Supreme Court, for
instance, ruled this year that the habeas clock is ticking even while
an inmate is asking for the high court to review state post-conviction
proceedings. So inmates have to file both requests at the same time.

All of this creates serious pitfalls even for well-informed and highly 
diligent prisoners. Six months leaves little room for error. 
Undoubtedly, many more habeas petitions, including highly meritorious 
ones, will wind up dismissed, deemed too late.

We now know of more than a dozen innocent people whose convictions were 
overturned on a writ of habeas corpus in recent years. Last year, John 
Grisham published a bestselling nonfiction book about one: Ron 
Williamson, whose death sentence in Oklahoma was overturned by a
federal judge. Shortening the statute of limitations risks that others
like him will never get their day in court.

Gonzales' certification can be challenged before a federal appeals
court in Washington. But it shouldn't have to go that far. Brown should
make clear that California will not invoke the six-month statute of 
limitations, no matter what Gonzales does.