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.

FILED UNDER: Blogosphere, Supreme Court, Uncategorized, , , ,
James Joyner
About James Joyner
James Joyner is Professor and Department Head of Security Studies at Marine Corps University's Command and Staff College. He's a former Army officer and Desert Storm veteran. Views expressed here are his own. Follow James on Twitter @DrJJoyner.


  1. Kent says:

    Gonzales Could Become Chief Executioner

    He’s gonna start executing people?

  2. Tlaloc says:

    Not to show my prejudice or anything but there’s no way in hell I want anybody remotely connected to Texas having any say at all about my state’s justice system.


  3. Steve Plunk says:

    Sure it’s wrong but why are we blaming Gonzales rather than the congress that passed the law? And why are we still harping about Gonzales’ integrity and competence when the evidence is he has acted correctly during congressional hearings?

    It’s a state issue clearly but it’s congress’s fault for writing bad law (again) so so lay blame where it’s due not at the feet of the AG. Everyone knows if you give a government agency the option to use power that option will be exercised.

  4. Tano says:

    Congress? You want to blame Congress?

    Would you care to be a touch more specific than that?

    How about “Republicans in Congress”? I mean, c’mon Steve, there is an ideology that has driven the Patriot Act excesses from the beginning, and it has its home on one particular party.

  5. mannning says:

    There is no doubt that the judicial system has convicted and put on death row a number of innocent men. Many have been saved recently by using DNA evidence not possible to use a decade or more ago.

    Thus, there is greater awareness of the possibility of judicial error today. There is greater pressure now to give the convicted man every possible chance to prove his innocence, or to prove that his trial was improper in some legal sense.

    Given all of that, the review and appeal process that lasts some 24 years, which has happened more than once, is patently not swift justice, either for the convicted man or for the justice system itself. If our court system is jammed beyond its physical limits to provide swift justice, then shouldn’t there be a move to expand the courts to meet the load in a timely fashion?

    That there is no such a move underway just might be due to sly political and judicial maneuvering to make the death penalty extremely hard to pursue, or to do away with it altogether. This might be yet another case of judicial legislation from the bench, or slow-rolling the system, based on the “private” beliefs of the appeals judges in question.

  6. Zelsdorf Ragshaft III says:

    I’ll take Gonzales over Reno any day. Ruby Ridge and Waco come to mind. What about that little Cuban boy. Just remember what you get with a Clinton.