Senators Call For More Time, Oversight On States Seeking To Speed Up Executions

Tuesday, August 14th 2007, 8:26 pm

By: News On 6

WASHINGTON (AP) _ Two senators have asked the Justice Department to delay new rules that would give Attorney General Alberto Gonzales authority to limit the time death row inmates spend on appeals before being executed.

The bipartisan request, in a letter from two of Gonzales' most vocal Senate critics, questions how strict the federal government will be in deciding whether states ensure that defendants in capital punishment cases have had competent legal help.

That's a task traditionally carried out by federal courts. But a little-noticed change last year in the anti-terrorism USA Patriot Act gives the attorney general the power to decide state requests for speedier appeals that generally run for years.

``States must be required to take meaningful steps to guarantee adequate representation of death row prisoners before certification occurs,'' said Sens. Patrick Leahy, D-Vt., and Arlen Specter, R-Pa., in their Aug. 2 letter to Gonzales. ``This is especially important in light of the accelerated timing and abridged federal court review.''

``It is crucial that the legislative changes to this complex and heavily litigated area of the law be successfully and appropriately implemented, especially given the tremendous stake for individual defendants,'' the senators wrote in the letter, which was obtained Tuesday.

A Justice Department spokesman did not have an immediate response to the letter.

The senators want Gonzales to shelve the rules _ which lay out requirements for states seeking to cut short inmates' time on death row _ until after Oct. 5 at the earliest to make sure they will include clear and specific guidelines. The Justice Department had planned to enact the rules following a public comment period that ends Sept. 23.

Their request strikes at the heart of a complicated change in federal law that could affect the estimated 3,350 death row inmates in prisons around the country.

Gonzales formerly served as a state Supreme Court justice in Texas, a state that has aggressively pursued the death penalty in criminal cases. The attorney general also has been criticized for seeking capital punishment in cases in which his federal prosecutors have not sought it.

Until last year's change, Gonzales did not have oversight of death penalty cases in state courts. The Patriot Act gave him new power to approve requests from states seeking mandatory deadlines for capital defendants who appealed their cases to federal courts.

At issue now is how much oversight Gonzales will give to states that claim they have gone beyond their constitutional duty, as is required as part of their request, in making sure death row defendants had adequate lawyers. The debate was first reported in Tuesday's editions of the Los Angeles Times.

The law only requires the U.S. attorney general to decide whether a state has a system in place to provide legal counsel to poor defendants appealing their death penalty sentences, the date it was set up, and whether there are any standards for determining the lawyers' competency. ``There are no requirements for certification or for application of this chapter other than those expressly stated in this chapter,'' the law states.

That's not a good enough guarantee for critics of the death penalty or capital punishment defense attorneys.

``All a state has to do is report it has a system,'' said Kathryn Kase, co-chair of the death penalty committee for the National Association of Criminal Defense Lawyers. ``There seems to be no mechanism that's going to hold them to determining if a system is in fact in place, and if it functions so as to ensure that people are not wrongfully convicted and sentenced to death. That really should concern Americans.''

Kase, a Houston attorney, said it takes an average of 11 years for information to become known about death row convicts who are ultimately found innocent. ``We really are ensuring that information about innocents isn't coming to the surface. This is a way of burying our mistakes,'' she said.

The proposed deadlines also are problematic, as they could tie up federal courts already overburdened with growing caseloads. Under the rules, a U.S. District Court would have 15 months to decide on an inmate's appeal to stay an execution; federal appellate courts would have four months to rule on an appeal.

``That's remarkably fast _ most federal civil cases take longer than that,'' said Rory K. Little, a death penalty expert at Hastings College of Law in San Francisco who worked at the Justice Department during the Clinton administration.

Gonzales' recent battles with the Democratic-led Senate, leading to bipartisan calls for his resignation, could ultimately result in a softer stance toward death row inmates. Little said it was too soon to draw conclusions about the rules, especially since ``they're not final yet.''

``This attorney general in particular, trying to implement changes in what seems like a damaged Department of Justice is unfortunate,'' Little said. He added: ``It's premature to think this is the end of the story. It's not.''