Aghast over AGAG

By AGAG, of course, we mean Attorney General Alberto Gonzales.

And aghast we are over the proposal to further undermine the ability of death-sentenced inmates to pursue meaningful habeas appeals.

Today we take the unusual step of publishing an entire op-ed on this blog. The op-ed, which appears in today's Los Angeles Times (hat tip, Steve Hall over at Stand Down Texas) is written by Duke University Law Professor Erwin Chemerinsky.

If you're wondering why all the buzz over the proposed "opt-in" regulations being bandied about by the Department of Justice, Chemerinsky does a better job than anyone else when it comes to laying it out in plain English:

Don't rush to execution
California must reject the U.S. attorney general's effort to bend death penalty rules.

By Erwin Chemerinsky
Atty. Gen. Alberto R. Gonzales is about to adopt an unnecessary and mean-spirited regulation that will make it harder for those on death row to have their cases reviewed in federal court. State Atty. Gen. Jerry Brown should make clear that California wants no part of this.

To understand what's going on here, you need a little background.

Let's say you were convicted of murder in California. Generally, as soon as you have exhausted your appeals in state court, the clock starts ticking: You have one year to file a petition for habeas corpus in federal court. (A writ of habeas corpus is a request for federal court review of a conviction on grounds that a person is imprisoned in violation of the Constitution and laws of the United States.)

That one-year timeline was set by the Anti-terrorism and Effective Death Penalty Act, adopted in 1996. But that law also allows a shorter time limit -- six months -- in death penalty cases.

Why less time for death penalty cases? It seems perverse, but Congress was actually trying to encourage states to provide lawyers for those on death row.

The Constitution guarantees the right to an attorney at trial when you're facing imprisonment or death and when you appeal your conviction at the state level. Beyond that, you're on your own. But the proceedings that come next -- collectively called "collateral review" -- can be crucial. It's at this stage, which includes habeas corpus petitions, that serious flaws in trial are often exposed, including the kind of mistakes that lead to the execution of innocent people.

Almost no states provide counsel in these crucial proceedings. So the 1996 law laid out this deal: If a state starts providing lawyers to capital defendants, it will get the benefit of a shorter, six-month statute of limitations.

So far, only Arizona has complied. Other states have decided that it's not worth the expense.

Enter Gonzales and the Patriot Act.

When it reauthorized the Patriot Act last year, Congress added a little-noticed provision that lets the attorney general, rather than federal judges, decide whether states are complying with the 1996 law. No one paid much attention, until now.

Gonzales, it has been widely reported, is about to certify California and other states as being in compliance with the 1996 law, in essence just giving them the six-month statute of limitations. But these states have done nothing that this law requires. Everywhere but Arizona, death row inmates still have to pay for their attorneys (unlikely), get pro bono representation (difficult) or represent themselves (unwise). Any "certification" is a lie.

Those who favor the shorter statute of limitations are frustrated by the long delays before executions are carried out. But Gonzales' move is not about preventing delays; at most, it speeds things up by six months. It is about preventing some inmates from having a habeas corpus petition heard at all.

Death row prisoners will still be without free attorneys, trying to file habeas corpus petitions on their own. But that process is rife with complex rules and technicalities. The U.S. Supreme Court, for instance, ruled this year that the habeas clock is ticking even while an inmate is asking for the high court to review state post-conviction proceedings. So inmates have to file both requests at the same time.

All of this creates serious pitfalls even for well-informed and highly diligent prisoners. Six months leaves little room for error. Undoubtedly, many more habeas petitions, including highly meritorious ones, will wind up dismissed, deemed too late.

We now know of more than a dozen innocent people whose convictions were overturned on a writ of habeas corpus in recent years. Last year, John Grisham published a bestselling nonfiction book about one: Ron Williamson, whose death sentence in Oklahoma was overturned by a federal judge. Shortening the statute of limitations risks that others like him will never get their day in court.

Gonzales' certification can be challenged before a federal appeals court in Washington. But it shouldn't have to go that far. Brown should make clear that California will not invoke the six-month statute of limitations, no matter what Gonzales does.