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.
"Opt-in would speed up the death penalty treadmill exponentially."
—Kathryn Kase, defense attorney
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 Chronice 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."
"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."