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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…

'Express lane to death': Texas seeks approval to speed up death penalty appeals, execute more quickly

Texas' Death Chamber
Texas is seeking to speed up executions with a renewed request to opt-in to a federal law that would shorten the legal process and limit appeals options for death-sentenced prisoners.

Defense attorneys worry it would lead to the execution of innocent people and - if it's applied retroactively, as Texas is requesting - it could potentially end ongoing appeals for a number of death row prisoners and make them eligible for execution dates.

"Opt-in would speed up the death penalty treadmill exponentially," said Kathryn Kase, an longtime defense attorney and former executive director of Texas Defender Services.

But a state attorney general spokeswoman framed the request to the Justice Department as a necessary way to avoid "stressful delays" and cut down on the "excessive costs" of lengthy federal court proceedings.

Robbie Kaplan, co-founder of the #TimesUp movement, says sweeping changes to laws in recent years have dissuaded attorneys from taking on harassment cases on behalf of women. The legal defense fund aims to change that.

The controversial request - which comes after years of declining executions - has sparked a federal lawsuit and hundreds of pages of comments from a broad coalition of concerned parties including the ACLU, the American Bar Association, Mexico's government, a former federal judge, and dozens of defense attorneys.

There's widespread skepticism among the defense bar as to whether Texas actually meets the qualification criteria - but some are worried that it won't matter. Approval is up to Attorney General Jeff Sessions, putting the nation's top prosecutor - who recently advocated for capital punishment for drug dealers - in charge of decisions that could hamstring the defense.

If Sessions greenlights the Lone Star State's application, it'll be the 1st ever opt-in approval in the more than 2 decades since the law's inception.

For attorneys like Casey Kaplan - who helped free a wrongfully convicted Harris County man, Alfred Dewayne Brown, from death row - that's a terrifying possibility.

"In an environment like Texas where you know the state gets it wrong - and not just accidentally, but intentionally - why in the world would you ever take steps to speed up the process to execute a potentially innocent person?" he said. "Until somebody can answer that question they should be taking steps to slow it down."

Whitewashing failure


The state's hopes for fast-tracking a path to the gurney date back to at least 1996, when Congress passed the Antiterrorism and Effective Death Penalty Act.

Written in the tough-on-crime 1990s and in the aftermath of the Oklahoma City bombing, the law set time limits to expedite federal appeals in death penalty cases and gave greater deference to state courts.

"We are about to curb these endless, frivolous appeals of death sentences by those convicted of murder," then-Sen. Bob Dole said at the time. Nationally, the average time between sentencing and execution has continued to rise, according to the Death Penalty Information Center.

But in addition to what is already in place, the law also opens the door to creating even tighter deadlines with a special opt-in provision under a section called Chapter 154.

In order to qualify for Chapter 154 certification, states have to prove that they offered good enough lawyers earlier in the process, during the so-called "state habeas" appeal. If the condemned were all able to get competent, sufficiently paid attorneys with the funds to afford things like investigators and specialists during the state habeas appeal, then the law would permit speeding up the later federal habeas appeal.

"Opt-in presumes that we've reached this promised land of excellent and well-resourced legal representation at all levels for everyone on death row and in fact we have not," Kase said. The slew of letters submitted to the government early this year consistently panned Texas's current defense system, calling it "inadequate" and "infected" by "well-publicized failures," pointing out that the state doesn't even guarantee counsel for all types of post-conviction proceedings.

So far no state has qualified.

But in November, Sessions fired off letters to Texas and Arizona - 2 states that previously put in certification requests - and asked if they still wanted to apply.

They did.

The states' affirmative responses prompted a required comment period, during with TDS and other capital defense organizations penned a scathing 247-page comment - bolstered by more than 100 appendixes - eviscerating Texas's application, calling it "little more than a whitewash of the state's persistent historic failures" that includes "no evidence at all."

The application itself also doesn't explain why the state wants to opt-in, but a state attorney general spokeswoman helped clarify.

"Opting-in would serve several purposes for Texans, including sparing crime victims years of unnecessary and stressful delays, ensuring that our state court judgments are respected by federal judges as cases progress, and reducing the excessive costs of lengthy federal court proceedings," said AG spokeswoman Kayleigh Lovvorn. The Department of Justice declined to comment and a spokesperson for the governor's office referred comment to the state attorney general.

Houston-based capital defense attorney Patrick McCann stressed that federal courts are where many condemned men - including those wrongfully convicted like Anthony Graves, and those deemed too intellectually disabled to execute, like Bobby Moore - have gotten relief.

"This is a political quest," he said. "It's an appeal to Gov. Abbott's base to make it very proudly explained that we have an express lane to death."

Worst-Case Scenario


If Sessions approves it, opting in would include limitations on how long federal courts have to resolve cases, restrictions on judges' abilities to grant stays of execution, and limits on the claims prisoners can raise in federal habeas proceedings.

But what's sparking the most concern among defense lawyers is a change that would halve the time attorneys have to file the 1st part of their federal appeal.

If Texas opts in, attorneys would have six months instead of a year to interview witnesses, hire investigators, and familiarize themselves sometimes a decade or more of case files to sift out any possible past lawyering mistakes, suspicion of withheld evidence or proof of actual innocence stuffed away in boxes and boxes of materials.

"Doing all that in one year is already extraordinarily difficult, and any further limitations would only exacerbate the existing problem," said Emily Olson-Gault, director of the Death Penalty Representation Project at the American Bar Association.

Texas' death row, Polunsky Unit, Livingston, Texas.
"We know that errors are made in capital cases," she added. "The more that the allotted time to prepare is limited, the greater the risk that serious constitutional errors will stand uncorrected."

And if claims aren't raised in the 1st filing, they can't always be raised later.

Death penalty lawyer Kenneth McGuire - who is among those suing in D.C. federal court to challenge the certification process - called the shorter time frame "completely impractical" and said it would "only guarantee a miscarriage of justice." Attorney James Rytting concurred, adding that sometimes it takes "several months" for the courts to appoint federal habeas lawyers.

And, because Texas has requested certification dating back to 1995, there's some question as to whether it would retroactively applied to cases now entering federal appeals.

"That's a worst-case scenario," McCann said.

Bigger Problems


Opting in wouldn't just impact defense attorneys and their clients.

Defense attorney Margaret Schmucker, who previously worked for the state attorney general under both Abbott and John Cornyn before him, highlighted the problems it could cause for the state attorneys, who would likely have to handle appeals at a quicker clip.

"On any given day any one of the capital division attorneys would have a couple dozen cases on their docket," she said. "And it's not going to be any easier on them. So unless the money and the staff comes to deal with the expedited processes they're going to have bigger problems."

It also could have an impact on which cases are taken up by the nation's highest court, which issued 2 groundbreaking decisions stemming from Houston-area cases last year.

"The Supreme Court can only hear what's brought to it and if those cases never get there because they get shut out or shut down, the Supreme Court is gonna be a lot less busy," McCann said.

"Bobby Moore would be dead under this standard of time limits. Anthony Graves would be dead. Pretty much everybody who's been released or commuted on death row would have already been executed so not only would we have done wrong we wouldn't even know we had."

As of now, it's not clear when a decision from Washington might come.

Source: Houston Chronicle, Keri Blakinger, March 2, 2018


Texas Seeks Sessions' Approval to "Speed Up the Death Penalty Treadmill"


Texas' death chamber, The Walls Unit, Huntsville, Texas
Critics warn the move could lead to the state killing a greater number of people

Texas is seeking permission from Trump administration Attorney General Jeff Sessions to opt-in to a federal law that would fast-track executions, a move that critics warn could lead to the state killing more people - including those who are wrongfully convicted and those deemed too handicapped to be executed.

While a spokesperson for the Texas attorney general's office claimed to Houston Chronicle that it is pursuing the measure - which would limit the length of the legal process and convicts' appeals options - to avoid "stressful delays" and "excessive costs," defense attorney Kathryn Kase warned that "opt-in would speed up the death penalty treadmill exponentially."

"Opt-in presumes that we've reached this promised land of excellent and well-resourced legal representation at all levels for everyone on death row and in fact we have not," added Kase, the former executive director of Texas Defender Services, a nonprofit that provides legal support to people challenging death penalty sentences.

Although the federal law has been on the books for two decades, no state has ever received opt-in approval from the Justice Department. However, the decision could be swayed by President Donald Trump's repeated endorsements of state-sanctioned killings.

Additionally, Sessions' actions so far suggest the Attorney General may be personally supportive of the move: In November, he reportedly sent letters to Texas and Arizona, the two states that have previously expressed interest in opting in, to inquire about whether they were still interested.

"And, because Texas has requested certification dating back to 1995," the Chronicle reports, "there's some question as to whether it would retroactively applied to cases now entering federal appeals." Currently, 229 inmates are on death row in Texas.

The law would restrict: the ability of federal judges to grant stays on executions; how long federal courts have to rule on cases; the claims convicts can raise during federal proceedings; and the amount of time defense attorneys have to file federal appeals.

Rather than a year, attorneys representing death row inmates would have only six months, as the Chronicle explains, "to interview witnesses, hire investigators, and familiarize themselves sometimes a decade or more of case files to sift out any possible past lawyering mistakes, suspicion of withheld evidence, or proof of actual innocence stuffed away in boxes and boxes of materials."

Texas' death row, Polunsky Unit, Livingston, Texas."Doing all that in one year is already extraordinarily difficult, and any further limitations would only exacerbate the existing problem," said Emily Olson-Gault, director of the Death Penalty Representation Project at the American Bar Association. "We know that errors are made in capital cases... The more that the allotted time to prepare is limited, the greater the risk that serious constitutional errors will stand uncorrected."

"It's an appeal to [Republican] Gov. [Greg] Abbott's base to make it very proudly explained that we have an express lane to death."----Patrick McCann, defense attorney

Houston-based defense attorney Patrick McCann pointed out that the limitations would likely reduce the number of Texas inmates' cases that make it to federal courts, which determined that Anthony Graves was wrongfully convicted and Bobby Moore (pdf) was too intellectually disabled to execute.

"Bobby Moore would be dead under this standard of time limits. Anthony Graves would be dead," McCann said. "Pretty much everybody who's been released or commuted on death row would have already been executed so not only would we have done wrong we wouldn't even know we had."

Calling the state's opt-in move "a political quest," McCann concluded, "It's an appeal to [Republican] Gov. [Greg] Abbott's base to make it very proudly explained that we have an express lane to death."

Source: commondreams.org, Jessica Corbett, April 2, 2018


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"One is absolutely sickened, not by the crimes that the wicked have committed,
but by the punishments that the good have inflicted." -- Oscar Wilde

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