Indeed, Alberto Gonzales long overstayed his welcome as a guest in the Department of Justice, a powerful place into which he should never have received an invitation, even if just to crash on the couch. When the Senate Judiciary Committee, as well as the rest of the country, inspected the Department, it found the place in disarray, reeking of disgrace and dishonesty, with termination letters of reputable Assistant United States Attorneys nailed to the wall, a memo authorizing torture stuck to the kitchen sink, the Constitution torn into shreds and scattered across the living room floor (with the provision regarding habeas corpus substituted as toilet paper in the bathroom), and the photographs replaced with pictures of President Bush. Yet in light of a recently amended provision in the reauthorized Patriot Act (a misnomer if there ever was one), which hands the Attorney General unprecedented influence in death penalty cases, a moment's solace can be taken knowing that giddy-for-the-guillotine Mr. Gonzales has moved on to less significant dwellings.
When Congress reauthorized the Patriot Act in 2006, it quietly included a provision having little to do with fighting terrorism, but was instead geared solely at speeding up the number of executions in the United States. Under the 1996 Antiterrorism and Effective Death Penalty Act (shamefully signed into law by President Clinton), which severely limits the power of federal judges to grant habeas relief to state prisoners, any state seeking stricter time limitations on its death row inmates' appeals in federal court must first show that it provides adequate counsel to defendants in capital cases. Up until recently, federal judges were responsible for determining the merit of states' applications, and since most states did not devote adequate resources to defendants facing the death penalty, these applications routinely failed.
Notwithstanding that the United States is one of the top executioners in the world, pro-death penalty factions grew frustrated that too few prisoners were being killed --- "only" 53 people, for example, were executed last year out of a death row population of 3,300. Many believe that a major source of the problem are obstructionist anti-death penalty judges delaying their decisions on habeas petitions.
Hoping to speed up the execution assembly line, when Congress reauthorized the Patriot Act, it transferred the review power of states' applications to none other than the highest-ranking prosecutor in the country --- the Attorney General. If the Attorney General certifies that a state is providing adequate counsel in capital cases and accepts the state's application (a decision which can be appealed to the D.C. Court of Appeals), death row defendants in that state will have only 180 days to file their habeas petitions after their state appellate process is exhausted. This will inevitably result in some death row inmates being time-barred from filing habeas petitions, or forcing others to file their petitions pro se (without counsel). In addition, there will be strict deadlines for federal judges to file their decisions regarding such petitions.
Putting aside the new rule itself for a moment, can you imagine if Alberto Gonzales, who treated clemency petitions in Texas with about as much gravity as junk mail and as Attorney General spent as much time considering or reconsidering whether to seek the death penalty as one might devote to selecting an entrée from a restaurant menu, was the person upon whom such review power was bestowed? I would not be shocked if secretly Alberto Gonzales doesn't even think death row inmates should get any post-conviction counsel!
Even with the departure of Gonzales, however, the problematic new provision persists. Why should the nation's leading prosecutor --- whoever it is --- be determining whether states provide adequate counsel to death row defendants? Is the Attorney General in Washington, D.C. in the best position to determine that? Is it not a conflict of interest, whether actual or structural, that a person who prosecutes death cases is deciding whether defendants are sufficiently represented? Isn't this review best left for judges?
Morever, this rule change comes as more and more wrongful convictions are coming to light, some of which resulted in death sentences. In fact, there have been 124 people freed from death row, including 15 of the 207 people who have been exonerated by post-conviction DNA testing.
Beyond the exonerations, there is a serious problem of adequate indigent defense in this country, not only in capital cases. Resources are few, but cases are many. Many poor people charged with crimes are not being represented well, if sometimes at all, and this often informs the outcomes of their cases.
Regardless of these serious problems, the Department of Justice is currently promulgating the new standards as well as outlining the procedures states must follow in order to be deemed in compliance by the Attorney General. Public comment will then follow, and by October the rules will likely be finalized.
Phew! We can then all be relieved that while the Iraq debacle continues, health care deteriorates, the middle class shrinks, the divide between rich and poor expands, millions of people languish in prison, the environment is neglected, indigent defense remains under-funded, wrongful convictions continue to occur, and on, and on, at least we are executing people at a faster pace. Now, at least, I can sleep easy.