Competent defense on death row

A federal law to improve state-provided counsel for death-row inmates will do the opposite.

Capital cases are notorious for bad defense lawyering. Author John Grisham underscored that in his real-life story of Ron Williamson, the innocent death-row inmate who was cleared by DNA evidence on federal appeal. Alarmingly, a law meant to help such inmates will do just the opposite.

The problem goes back to a 1996 law passed by Congress. It was based on a quid pro quo to encourage states to provide competent defense counsel in death-penalty cases. If the states stuck to the quid part and delivered on able defense lawyering, they'd get a valuable quo in return: a quicker federal appeal process (by way of – more Latin here – a writ of habeas corpus).

States have an interest in speed. Some death-penalty cases can take decades to resolve, and housing for death-row inmates can cost much more than for the general prison population.

Several states have attempted to earn the fast-track option. But none has fully satisfied a federal court that the state has a system in place to properly assist those charged with capital crimes. Consequently, no speedier federal appeal process – yet.

This frustrated several members of Congress. So last year, as part of the renewal of the USA Patriot Act, they inserted a provision that switched the decisionmaker. Instead of federal courts deciding whether the states are up to snuff, it's the US attorney general.

That's a real mistake.

The attorney general, regardless of who holds that title (Alberto Gonzales announced his resignation Monday), is hardly an unbiased judge concerning the death penalty. That office represents the highest prosecutor in the land, and it files briefs on behalf of prosecutors in death-penalty cases.

Also deeply troubling: New federal regulations – pending a period of public commentary that ends Sept. 24 – don't specify what constitutes competent defense counsel. The concern is that the attorney general will take advantage of that loophole and certify states that so far have not qualified.

Congress needs to undo this switch. It's a clear conflict of interest. Lawmakers should also reconsider the fast-track option, which would reduce the time an inmate has to file a federal appeal to six months from a year, and would also shrink the time federal courts have to decide such petitions.

For one, that enticement is obviously not having the intended reforming effect of improving defense counsel. More important, it would speed up the appeals process just when caution is to be advised.

In recent years, more than a dozen innocent death-row inmates have had their convictions overturned on federal appeal – with DNA forensics playing a critical role. The reversals have created a growing national unease about the fairness of the death penalty, which this newspaper opposes on moral grounds.

Lastly, the fast-track option is misdirected. The greater source of delay, says Richard Dieter, director of the Death Penalty Information Center, is at the state level. Poorly defended cases result in retrial. And large numbers of death-row inmates (California has more than 600) create bottlenecks.

The remedy is for states to provide the resources for competent defense – enticement or not. A life is on the line. It deserves the extra mile, not a shorter mile.

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