Some people reading this blog are aware that the Department of Justice has proposed new guidelines that would restrict a death row inmate's ability to appeal his sentence. In short, if a state proves to the Department of Justice that it is providing competent attorneys for an inmate to appeal his or her conviction and sentence, then that inmate has a shorter period of time to file his appeals.
Sounds good, on paper. After all, many people express confusion over the amount of time it takes for death penalty appeals to run their course.
The devil, as they say, is in the details. First, no state currently is doing an adequate job of providing lawyers for these all-important appeals. (Arizona, arguably, comes closest. But even it is not that close.)
Second, under the guidelines, the prosecution-oriented Department of Justice gets to decide whether a state is doing a good job or not and is allowed to curtail its inmates' appeals. That's a classic case of the fox guarding the hen house.
Third, and this is where innocence comes in, it is really important to note that when cases emerge of innocent people being exonerated from death row, there is no Perry Mason moment, no CSI drama, when the facts of the case emerge. Often, the facts emerge during the lengthy habeas corpus process -- the very process that the Department of Justice (and its former leader, Attorney General Alberto Gonzales) is trying to abridge.
The very best op-ed that has been written on this subject can be found here. It is authored by none other than Duke University Law Professor Erwin Chemerinsky. (I don't want to get too off-topic here, but Chemerinsky has been in the news a lot lately. He was offered the job of dean of the University of California--Irvine law school. Then, the very day that the aforementioned op-ed appeared in the Los Angeles Times, the offer was suddenly rescinded. Now he has been re-offered the job. To follow this very interesting and entertaining saga, which is all the talk in academic and legal circles, go here.)
An excerpt from Chemerinsky's op-ed:
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.
Fortunately, there is something you can do about these proposed guidelines. You have until next Monday, Sept. 24, to protest this unfair, insensible and truly outrageous abridgement of what are extremely important and critical habeas appeals. You can go here to send a message to the U.S. Justice Department and tell them you don't want a fast track to executions.
Keep in mind: If these rules are adopted, history aptly tells us that innocence people will be executed. We know that innocence matters. Let's not let this happen.