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Capital Mistake: Speeding Up a Broken Process Is No Solution

Lawmakers in at least two death penalty states have chosen to speed up capital cases instead of fixing the problems that slow down capital cases.

Published: January 30, 2014

Lawmakers in states that still impose the death penalty always have a choice to make when they intro­duce legis­la­tion that impacts capital cases. They can acknow­ledge the many flaws within their state’s death penalty system, under­stand why those flaws exist, and then work with stake­hold­ers in the regime of capital punish­ment to fix the prob­lems that exist. That would mean laws, for example, that require prosec­utors to do a better job of shar­ing exculp­at­ory evid­ence, make DNA test­ing more widely and more quickly avail­able, and adequately fund indi­gent defense work.

Or, those same lawmakers could ignore the flaws that delay capital cases by making them inac­cur­ate and press ahead instead with legis­la­tion that speeds up their resol­u­tion without regard to the accur­acy of the result in any partic­u­lar case. This legis­la­tion would infringe upon core judi­cial func­tions by forcing judges to accept filing dead­lines that may not be “in the interests of justice” or that other­wise may viol­ate the consti­tu­tional rights of capital defend­ants. All in the name of exped­it­ing a process that is delayed by the very substant­ive flaws the lawmakers have chosen to ignore.

This year, regret­tably, lawmakers in at least two death penalty states — Tennessee and Alabama — have chosen to speed up capital cases instead of fixing the prob­lems that slow down capital cases. The bill in Tennessee, styled SB 2322, was just intro­duced last week and has not been debated yet on the floor of the state house. But the meas­ure in Alabama, with the Orwellian title “The Fair Justice Act,” already has passed through commit­tees of both houses in Mont­gomery. And there is no reason to think that the GOP-domin­ated legis­lature, or the state’s Repub­lican governor, won’t endorse and enact the bill. Instead of slow­ing down at the potholes in capital cases these folks want to speed up.

The damage these meas­ures would create is immense — liter­ally a matter of life or death—and not spec­u­lat­ive. In Alabama, defense attor­neys and journ­al­ists already have iden­ti­fied at least five capital cases in which the new rules would make a differ­ence. In just the past seven years, five condemned men there received new trials by invok­ing a process the new Alabama meas­ure would seek to restrain. In two of those cases, judges found that prosec­utors had with­held evid­ence. In one case, there was a valid claim of inef­fect­ive assist­ance of coun­sel. Jury miscon­duct was involved in two other cases.

These injustices might not have been brought to light if the new Alabama rules were in place limit­ing the time avail­able to seek the relief the men sought. The five men given a second chance for due process and a fair trial would either have been executed, because their appel­late rights would have expired, or would have had to rely upon some sympath­etic federal court for relief. But federal judges, thanks to a Clin­ton-era federal law (with another Orwellian title) sharply limit­ing the appel­late rights of capital defend­ants, routinely reject even the most merit­ori­ous appeals on the most tech­nical grounds. Bryan Steven­son, of the Equal Justice Initi­at­ive, based in Alabama, offers this trenchant perspect­ive:

Alabama had the highest rate of execu­tions between 2009 through 2011. We also have the highest death senten­cing rate in the coun­try but still do noth­ing to provide lawyers to condemned pris­on­ers. There are no state-funded programs or agen­cies to provide legal assist­ance to the nearly 200 people on death row. A judge can appoint a lawyer to repres­ent a death row pris­oner but Alabama law limits the amount of money that can be paid to that lawyer to $1500 a case. No “stream­lin­ing” meas­ure can make death penalty appeals more effi­cient until the seri­ous prob­lem of coun­sel is addressed. We have people in Alabama liter­ally "dying for legal assist­ance, that’s the crisis the state should be address­ing. 

In some ways the proposed Tennessee meas­ure is worse. In addi­tion to restrict­ing dead­lines in capital cases, as Alabama is contem­plat­ing, the Tennessee bill seeks to penal­ize defense attor­neys — to require them to pay fines — if they repres­ent capital defend­ants but later are deemed to have provided “inef­fect­ive assist­ance of coun­sel.” The intent is to dissuade bad lawyers from getting involved in capital cases but the effect will be to make it even harder for indi­gent capital defend­ants to get repres­en­ted in court by compet­ent attor­neys who have both the time and the resources to give condemned pris­on­ers a defense to which the Consti­tu­tion entitles them.

Speak­ing of perverse incent­ives, stop for a moment and think about what these meas­ures would mean in real life. Prosec­utors who hide evid­ence — a consti­tu­tional viol­a­tion the courts don’t enforce nearly often enough—would know they would simply have to run out the clock with the new dead­lines to forever hide the impact of their miscon­duct. The same is true of witnesses who provide false or inac­cur­ate testi­mony at trial or of jurors who viol­ate their oaths. Ironic, isn’t it, that the folks who want to speed up capital dead­lines are the exact same folks who don’t want to speed up the test­ing of DNA evid­ence that might exon­er­ate a defend­ant.   

Another state that peren­ni­ally seeks to fiddle with its capital proced­ures, another state where indi­gent defend­ants are routinely left without adequate coun­sel, is Flor­ida. In 2000, lawmakers sought to exped­ite capital appeals — and were blun­ted by a ruling by the state supreme court. Last year, invig­or­ated, Flor­ida lawmakers sought to strip power from the state’s judi­ciary to formu­late proced­ural rules in capital cases. The meas­ure didn’t pass, Bill Raftery of the indis­pens­ible Gavel to Gavel website told me Wednes­day, but it wasn’t for a lack of effort. Flor­ida is likely to try again — and again be blocked by the courts from viol­at­ing the consti­tu­tional rights of its capital defend­ants.

Two things are happen­ing here and neither of them speaks well of the lawmakers endors­ing these meas­ures. Either they don’t under­stand that delays in capital cases stem from substant­ive prob­lems that occur at or before trial, in which case they are plainly ignor­ant about the topic about which they are legis­lat­ing, or they do under­stand the cause-and-effect here and don’t care to fix it, in which case they are abdic­at­ing their legis­lat­ive respons­ib­il­ity to promote sound public policy. There is plenty about the death penalty that is broken in Alabama and Tennessee (and every­where else). But speed­ing past these broken parts is simply no solu­tion at all.

(Photo: Think­stock)