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America Is Stuck With the Death Penalty for (At Least) a Generation

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With Justice Anthony Kennedy's retirement, the national fight to abolish capital punishment will have to go local.
When the Supreme Court revived capital punishment in 1976, just four years after de facto abolishing it, the justices effectively took ownership of the American death penalty and all its outcomes. They have spent the decades since then setting its legal and constitutional parameters, supervising its general implementation, sanctioning its use in specific cases, and brushing aside concerns about its many flaws.
That unusual role in the American legal system is about to change. With Justice Anthony Kennedy’s retirement from the court this summer, the Supreme Court will lose a heterodox jurist whose willingness to cross ideological divides made him the deciding factor in many legal battles. In cases involving the Eighth Amendment’s prohibition against cruel and unusual punishment, his judgment often meant the difference between life and death for hundreds of death-row pr…

Federal Appeals Court Ruling Could Accelerate Death-Row Executions

California death row
California death row
A contentious Justice Department policy that could speed up death-row executions is closer to taking effect, following a recent federal appeals court ruling.

The opinion from the Ninth U.S. Circuit Court of Appeals could clear the way for states to apply for a program to fast-track death-row appeals, potentially leading to swifter executions. Death-penalty supporters have been calling for speedier appeals for years, though defense lawyers and death-penalty opponents say fairness is lost if complicated appeals aren’t given the time they need.

The controversy over the policy comes as the use of the death penalty continues a yearslong decline. In 2015, 28 people were executed, the lowest number since 1991, according to a study by the Death Penalty Information Center. Roughly 3,000 inmates sat on death row at the beginning of the year, and 31 states currently allow executions.

In its Wednesday decision, the Ninth Circuit tossed a 2013 lawsuit brought by the Habeas Corpus Resource Center in California and the Office of the Federal Public Defender for the District of Arizona.

The suit challenged a Justice Department policy that in certain states would shorten the amount of time—from one year to six months—in which prisoners must challenge their conviction in federal court after state appeals end. The fast-track process would also impose deadlines on federal courts for ruling on challenges, typically known as habeas corpus petitions. Right now, there are no limits on how quickly the courts must rule on habeas petitions.

The plaintiffs, which represent death-row inmates in federal appeals, had argued the Justice Department regulations were too vague and caused the groups concern over how to commit limited attorney time and financial resources in capital cases.

But the court sided with the Justice Department, finding that the plaintiffs failed to show they had been directly harmed. “Assisting and counseling clients in the face of legal uncertainty is the role of lawyers," the three-judge panel wrote.

Opponents worry the policy will shortchange death-row inmates. “At a time when capital punishment is coming under serious scrutiny, we think there needs to be greater opportunities for courts to review these cases,” said Marc Shapiro, an attorney for the plaintiffs. “DOJ is seeking to do exactly the opposite, and slide the cases through federal court.”


Source: The Wall Street Journal, March 27, 2016

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