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Gonzales Could Get Say in States' Executions

by Richard B. Schmitt

WASHINGTON - The Justice Department is putting the final touches on regulations that could give Atty. Gen. Alberto R. Gonzales important new sway over death penalty cases in California and other states, including the power to shorten the time that death row inmates have to appeal convictions to federal courts.

The rules implement a little-noticed provision in last year's reauthorization of the Patriot Act that gives the attorney general the power to decide whether individual states are providing adequate counsel for defendants in death penalty cases. The authority has been held by federal judges.

Under the rules now being prepared, if a state requested it and Gonzales agreed, prosecutors could use "fast track" procedures that could shave years off the time that a death row inmate has to appeal to the federal courts after conviction in a state court.

The move to shorten the appeals process and effectively speed up executions comes at a time of growing national concern about the fairness of the death penalty, underscored by the use of DNA testing to establish the innocence of more than a dozen death row inmates in recent years.

Amid the public debate, the number of people executed in the U.S. has declined steadily since the mid-1990s.

California and several other states have moratoriums on lethal injections, stemming from legal challenges. Opponents say the way the states administer a three-drug lethal cocktail unnecessarily risks excessive pain for the inmate and therefore violates the constitutional bar against cruel and unusual punishment.

A federal judge in San Jose, citing a lack of training and supervision of the execution team, ruled California's application of lethal injections unconstitutional. State officials have proposed changing procedures to try to address the judge's concerns. A hearing is in October.

Prosecutors say many death penalty cases take far too long to resolve even when the issue of guilt is clear. Especially in the West, where the U.S. 9th Circuit Court of Appeals in San Francisco has blocked many executions, cases can take decades to wind through the courts. In its most recent term, the U.S. Supreme Court restored the death penalty in three cases in which the 9th Circuit had reversed the sentence.

One of the cases involved a two-time Arizona murderer who told the sentencing judge: "If you want to give me the death penalty, just bring it right on." He was sentenced in 1990.

Some Arizona officials say the new procedures are long overdue. "If you are going to have the death penalty at all, it shouldn't take 20 to 25 years," said Kent Cattani, the chief capital litigation counsel in the Arizona attorney general's office. "Either get rid of it altogether, or try to have a good system in state courts and then accelerate it through the federal courts."

On the other side, advocates for death row inmates and some legal experts say the rules would make a bad system worse.

"It is another means by which people are determined to shut the federal courts down to meaningful review of death penalty cases," said Elisabeth Semel, director of the Death Penalty Clinic at the UC Berkeley law school. "The inevitable result of speeding them up is to miss profound legal errors that are made. Lawyers will not see them. Courts will not address them."

"This is the Bush administration throwing down the gauntlet and saying, 'We are going to speed up executions,' " said Kathryn Kase, a Houston lawyer and co-chair of the death-penalty committee for the National Assn. of Criminal Defense Lawyers.

About 3,350 people are on death row in the U.S., including more than 600 in California. Most were sentenced in state courts, but death cases almost always end up being reviewed by federal judges too.

It is impossible to estimate how many inmates might be affected. Some with appeals pending could see their cases shortened.

"Cases in the system for 20 years in federal court, it will not affect those," said Cattani. But "it will prevent those from happening in the future."

The procedures would cut to six months, instead of a year, the time that death row inmates have to file federal appeals once their cases have been resolved in the state courts.

It would also impose strict guidelines on federal judges for deciding such inmates' petitions. Federal district judges would have 450 days, appeals courts 120 days. Proponents say that would prevent foot-dragging by liberal judges.

The costs associated with the death penalty have also been a growing concern to some states. California, for example, spends $90,000 more a year on housing a death row inmate than an inmate in the general prison population - adding up to $57.5 million annually - according to a 2005 study by The Times.

The idea behind the new rules has been years in the making. The federal Anti-Terrorism and Effective Death Penalty Act of 1996 set up a system in which states could take advantage of faster procedures so long as they could prove they had made sure defendants had had adequate counsel in state courts. California and several other states applied to the program starting in the late 1990s. But federal courts ruled that they were not doing enough to provide defendants with competent attorneys.

Frustrated with the pace of changes - and believing that judges were part of the problem - death penalty advocates Rep. Dan Lungren (R-Gold River) and Sen. Jon Kyl (R-Ariz.) led a successful effort to include language in the Patriot Act last year that let the attorney general, rather than judges, decide whether states were ensuring death row inmates had adequate legal representation.

Under the law, the attorney general's decision could be challenged before the federal appeals court in Washington.

Justice Department officials are seeking public comment on the rules until Sept. 23, after which they will be finalized "as quickly as circumstances allow," said department spokesman Erik Ablin.

Some critics question whether the rules would have the desired effect. The rules would require that states establish a "mechanism" for supplying lawyers to death row inmates in order to qualify for the expedited procedures but would not ensure that the lawyers were competent or adequately funded, these critics say.

Arizona and California have state-supported programs that aid defense counsel in capital cases, but there are still not enough lawyers to go around. And funding for legal bills and other expenses is far from adequate, lawyers for death row inmates say.

"If you are going to impose the kind of incredibly stringent deadlines that this statute imposes . . . you need to ensure people get adequate representation throughout the state process," said Robert Litt, a former Justice Department official representing the American Bar Assn. in the rule-making dispute. "This is the opportunity that the Department of Justice has missed."

He said: "Without a set of standards to guide the attorney general, there is a tremendous potential for arbitrariness here, and to put a thumb on the scales on the side of the states."

The Judicial Conference of the U.S., the policy-making arm of the federal courts, also sees problems.

States might be able to qualify even if they had not provided lawyer services "sufficient to enable federal court litigation to proceed fairly within the expedited time period," the group said in a letter to the Justice Department this month.

Critics also say there is a major conflict of interest for the nation's top law enforcement officer to judge the qualifications of lawyers defending people whom government officials are seeking to put to death.

Others have doubts about giving Gonzales in particular more power. His judgment has been challenged over his handling of the firing of eight U.S. attorneys last year, among other matters.

Death penalty foes also say his record on the issue inspires no confidence that the rules will be administered fairly. As legal advisor to then-Texas Gov. George Bush in the 1990s, he gave what many saw as cursory treatment of clemency petitions of capital defendants whom the state subsequently put to death.

"It is almost a cruel joke for Congress to have said, 'What we would like to do is improve the way states handle these' . . . and then put it in the hands of, all people, the attorney general," said Lawrence Fox, a Philadelphia lawyer who teaches legal ethics at the University of Pennsylvania Law School. "It really is quite extraordinary. He is the chief prosecutor of the United States. He couldn't possibly be unbiased."

Fox said he would have problems with any attorney general wielding that power.

Under the proposed rules, each state, through its attorney general, would have to apply to the Justice Department to be included in the program.

Besides Arizona, where 114 prisoners are on death row, Texas, Oklahoma, Pennsylvania and other states have shown interest in the new procedures.

It's unclear whether California would apply. Atty. Gen. Jerry Brown is an avowed opponent of the death penalty, but many staff attorneys support the rule, and Brown has said he will not allow his personal feelings to affect his judgment about enforcing the law.

Times staff writer Henry Weinstein in Los Angeles contributed to this report.

Copyright 2007 Los Angeles Times

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