AG Involvement in Capital Appeals:

The Los Angeles Times reports today that the Justice Department is preparing to issue regulations that will authorize the Attorney General to determine whether capital defendants received adequate legal representation at trial in state court proceedings.

he 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. . . .

The idea behind the new rules has been years in the making. The federal Anti-Terrorism and Effective Death Penalty Act of 1996 set up a system in which states could take advantage of faster procedures so long as they could prove they had made sure defendants had had adequate counsel in state courts. California and several other states applied to the program starting in the late 1990s. But federal courts ruled that they were not doing enough to provide defendants with competent attorneys.

Frustrated with the pace of changes — and believing that judges were part of the problem — death penalty advocates Rep. Dan Lungren (R-Gold River) and Sen. Jon Kyl (R-Ariz.) led a successful effort to include language in the Patriot Act last year that let the attorney general, rather than judges, decide whether states were ensuring death row inmates had adequate legal representation.

Under the law, the attorney general's decision could be challenged before the federal appeals court in Washington.

Justice Department officials are seeking public comment on the rules until Sept. 23, after which they will be finalized "as quickly as circumstances allow," said department spokesman Erik Ablin.

I am no expert on AEDPA or capital appeals, but this all seems somewhat bizarre to me. I recognize that the purpose here is to accelerate death penalty appeals — which can drag on for years and years — but it still seems like an odd (and potentially troubling) way to do it. Are there any VC readers that care to shed light on this reform and the proposed regulations?

UPDATE: Reader Mark Arnold, a civil attorney who received a court appointment to handle a habeas case, writes:

You'll find the statutes in chapter 154 of 28 U.S.C., §§ 2261 thru 2266. The Sixth Amendment does not require counsel in state habeas cases and, for many years, the quality of such representation was extremely uneven in many states. The idea behind chapter 154 was to give the states an incentive to provide better quality state habeas representation, by establishing strict time limits for federal habeas review for states that met the standard. The state has every incentive, of course, to do the minimum necessary to qualify for fast track. The new statutory provisions take the responsibility for determining compliance from the courts and vest it in the AG.

There's no doubt that AEDPA addressed a legitimate concern. Granting the legitimacy of capital punishment, which is settled law, the states have a perfectly legitimate interest in carrying out their sentences within a reasonable time. Decades-long delays in executions are inconsistent with that interest and horribly unfair to the victim's family. AEDPA just found the wrong solution. The right answer is to skip the state habeas.

The way it's done today, the capital prisoner has a right of direct appeal from his trial. If he wants to raise collateral issues, such as ineffective assistance of counsel, he has to file a state habeas claim in state trial court. He gets discovery, a hearing and an order from which he can appeal. Then and only then can he go to federal court where he gets a third level of review, though usually only on the record made in state court. If he gets a certificate of appealability, he can appeal that too.

This triple review is wasteful and unnecessary and it creates enormous opportunities for waiver. If a capital defendant has an incompetent trial counsel and a good habeas counsel, he likely gets a new sentencing hearing. If he has an incompetent habeas lawyer, he's a dead man.

Also, as noted by a commenter, here are the proposed rules at issue.

NYT on Speedy (Executions) Gonzales:

Adam Liptak's latest column discusses the new Justice Department rules that will allow the Attorney General to speed up appeals in capital cases.

Under an odd provision in last year’s reauthorization of the USA Patriot Act, the antiterrorism law, the attorney general is to take on a role that has for more than a decade belonged to the courts. After the Justice Department finishes writing the regulations, Mr. Gonzales will get the job of deciding whether states are providing condemned inmates with decent lawyers.

If the answer is yes, federal litigation in capital cases from those states — one of the main reasons for the lengthy appeals — will move to a fast track. Inmates will have to file habeas corpus challenges in six months rather than a year, and judges will be subject to strict deadlines. Appeals courts, for instance, will get 120 days to decide cases.

The trade-offs themselves are not new, and they are not necessarily a problem. If states can be encouraged to provide able defense lawyers to death row inmates in state proceedings, the federal courts may indeed have less to worry about.

But giving the power to decide when a fast track is warranted to an interested party like Mr. Gonzales is a curious way to run a justice system.