Gonzales Could Become Chief Executioner
Attorney General Alberto Gonzales is about to be put in charge of the death penalty at the state level. After all, he’s done such a bang-up job running the Justice Department!
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.
Prosecutors say many death penalty cases take far too long to resolve even when the issue of guilt is clear. Especially in the West, where the U.S. 9th Circuit Court of Appeals in San Francisco has blocked many executions, cases can take decades to wind through the courts. In its most recent term, the U.S. Supreme Court restored the death penalty in three cases in which the 9th Circuit had reversed the sentence.
On the other side, advocates for death row inmates and some legal experts say the rules would make a bad system worse. “It is another means by which people are determined to shut the federal courts down to meaningful review of death penalty cases,” said Elisabeth Semel, director of the Death Penalty Clinic at the UC Berkeley law school. “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.”
If we’re going to execute murderers, it makes sense to streamline and standardize the review process. There has to be a better way to go about it than having convicted murderers spend more than a decade in jail after sentencing doing a bizarre dance up and down the appellate process.
Still, this new rule flies in the face of our system of justice. Forget about the fact that Gonzales’ integrity and competence are under assault from both sides of the aisle. It’s not people would have been clamoring to give Janet Reno this power, either.
Why is a federal official being put in charge of something that’s clearly a state matter? Moreover, isn’t the appellate process a matter for the judicial branch? After all, the whole point of the trial and appeals system is to check the executive branch’s power.
If the blogosphere is any indication, there seems to be a widespread consensus that something’s not quite right here. As you’d expect, TPM‘s Paul Kiel, ThinkProgress, Kevin Hayden at American Street, TalkLeft‘s Jeralyn Merritt, Newshogger Cernig, and others on the left are up in arms over this. After all, they oppose the death penalty, the Bush Administration, Alberto Gonzales, or some combination of those. That doesn’t make their arguments any less valid, of course, but it makes them easier to dismiss by administration backers.
Not so much the near-universal condemnation of those in the right-of-center camp. Jonathan Adler dubs it “bizarre” and “odd.” His colleague Orin Kerr thinks it “kinda fishy.” (That’s the kind of complicated legal jargon you’d expect from two law professors!)
Steven Taylor argues, correctly I think, that this is another case of executive overreach under the guise of fighting terrorism (and one, I’d add, that has precious little to do with fighting terrorism) and “yet another example of the recent trend in the Republican Party, i.e., an interest more in power than in supposedly long-held principles (in this case, federalism).”
If there’s a rationale for this that they’re all missing, it doesn’t spring readily to mind.