P E N A L T Y   B O X

A much-needed reform seemed poised to hasten executions -- 
until federal judges got their hands on it.

ANDREW PEYTON THOMAS
Mr. Thomas, an attorney in Phoenix, is a former assistant attorney general for Arizona.
From: http://www.nationalreview.com/04may98/thomas050498.html

NEVER has the grim reaper been denied so unjustly for so long. Between 1977 and 1996, the average time that a condemned prisoner sat on death row almost tripled, from just over 4 years (51 months) to over 11 years (134 months). In some states, especially the unfortunate Western block of states trapped in the sprawling, liberal Ninth Circuit Court of Appeals, delays were even longer. In California, the average delay is 13 years and 5 months. Arizona's capital cases languish in the federal courts for more than 8 years on average.

In April 1996, Congress tried to do something about this dysfunctional system by passing the Antiterrorism and Effective Death Penalty Act (AEDPA). The act greatly reined in habeas-corpus petitions, the suits that death-row inmates file in federal court for review of their state death sentences; it ensured that habeas petitions could no longer be dragged out for a decade or more.

Such suits would have to be filed within 180 days after either final affirmation of the condemned man's conviction by a state court or expiration of the time for seeking such review.  The act also sought to impose some discipline on federal judges. It required district-court judges to render a decision on a capital habeas petition within 180 days of its filing. Federal courts of appeals were given 120 days to hand down their rulings after the reply brief was filed.  "No delay in disposition shall be permissible because of general congestion of the court's calendar,'' the act stated.  Habeas petitions are to be "given priority" over "all noncapital matters," and federal courts may consider only those claims raised by the petitioner in state court.

The AEDPA seemed a reasonable, studied response to the seemingly interminable delays in executions of first-degree murderers across the land, delays that resulted largely from the federal courts' leisurely processing of federal habeas appeals (generally, federal judges are fond neither of the death penalty, nor of working under a deadline). But it already seems clear that the AEDPA is an abject failure, a metaphor for the very problem it was meant to help remedy an out-of-control federal judiciary, impervious to the claims of the rest of the political system, or even of simple justice.

According to the AEPDA, for a state to "opt in" to the new system and take advantage of the habeas deadlines, it must meet certain requirements. The state must establish a "mechanism for the appointment, compensation, and payment of reasonable litigation expenses of competent counsel in state post-conviction proceedings brought by indigent prisoners." This mechanism
must offer counsel to all poor inmates under capital sentence. States with a "unitary" appellate system (chief among them is California) must establish standards of competency for appellate counsel and provide them with reasonable compensation.

Whom did the act entrust with determining whether a state has met the opt-in requirements? Congress gave this critical responsibility to the very federal judges whom the act was meant to control. Not surprisingly, they have been in no hurry to declare the states in compliance. To date, not a single state has been permitted to opt in to the AEDPA's system of expedited capital appeals.

Two years after passage of the AEDPA, death-penalty appeals in the federal courts remain as protracted as ever.  The uniformity and alacrity with which federal judges across the country have
declared their states in conflict with the AEDPA suggest a broad-based judicial animus. Federal courts in California, Pennsylvania, Washington, Ohio, Maryland, Florida, Virginia, and Tennessee have deep-sixed those states' requests to opt in to the act. Pennsylvania, bowing to judicial
opposition, threw in the towel by freely stipulating in court that it did not satisfy the act's requirements.

Nowhere has the judicial bias against the AEDPA been more transparent than in Ashmus v. Calderon, a California case. The case was heard by federal Judge Thelton Henderson, best known as the author of the ruling last year that the California Civil Rights Initiative violated the equal protection clause of the Fourteenth Amendment. Not only did Henderson declare that California fell
short of qualifying for the "benefits" of the AEDPA (he placed the term "benefits" in derisive quotation marks), he issued an order forbidding California even to argue in court that it was in compliance with the act.

Henderson also accused California of improperly "threatening" to invoke the act -- simply because the state had claimed in court that it met the act's requirements. "Defendant's statements," Henderson opined, "leave little room for doubt that, absent judicial relief, they will continue to make such threats and assertions." The Ninth Circuit upheld Henderson's ruling in almost every particular. California has appealed the decision to the U.S. Supreme Court, arguing that, at the very least, the First Amendment gives a state the right to argue in court that it has complied with the act. The high court granted certiorari and heard oral argument on March 24.  

Other judges have been less strident than Henderson, offering instead an assortment of state-specific reasons for turning down opt-in requests. The dominant theme is that the states have failed to provide counsel that the courts deem competent. At first blush, this might seem an appropriate and even laudable reason for judicial resistance. But judges have used a narrow and perhaps self-interested definition of ``competent,'' in some cases requiring specialized expertise in habeas appeals. This restricts the pool of qualified counsel to the point where states can have trouble fielding enough attorneys to handle their capital caseloads.

Congress bears its own share of responsibility for this judicial foot-dragging. The language of the AEDPA is what has given judges their wide discretion, particularly the act's failure to define key terms such as "competent." Moreover, by imposing a myriad of new requirements on those states wishing to opt in, the AEDPA reveals something even more disturbing: a lack of congressional trust that the states can and will provide adequate counsel absent micromanagement from the federal judiciary. If federalism means anything, surely it means that the states should be permitted to run their own criminal-justice systems.  

In fairness to Congress, it inherited a jurisprudential mess when it grappled with this habeas situation. The federal courts had piled penumbra atop emanation in manufacturing and defending a dubious right to ``effective'' assistance of counsel on appeal (the right was minted in 1985 in the Supreme Court case of Evitts v. Lucey). But instead of picking a deserved fight with the judiciary on a questionable right of recent vintage, Congress punted. 

It is not too late for Congress to correct these flaws. It should repeal the AEDPA's requirements so that the states may benefit from the act's death-penalty reforms without being saddled with vague, expensive mandates.  The states should be trusted once again to hire qualified counsel for capital
appeals without supervision by the same federal judges the AEDPA is meant to curb. Condemned petitioners, of course, may still file habeas appeals with the assistance of counsel -- but the courts will be taken out of the business of deciding what is ``competent'' counsel. 

When the Democrats and the courts complain, the Republicans can properly point to the judicial obstruction of the AEDPA to date.  They might also note that hardened murderers on death row have been able to avoid execution for more than a decade on average in large part because their advocates are quite competent indeed -- seated on the bench, with gavels in hand.  


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