Patriot Act Revision Gives A-G Power on Death Row

Editor's note: This interview was recorded before Attorney General Alberto Gonzales' resignation.

One of the revisions in the USA Patriot Act reauthorized by Congress in 2006 moves the decision-making power about whether a death row inmate has received adequate legal representation for a federal appeal from the courts to the U.S. attorney general. It also reduces the time allotted for appeals, effectively increasing the chances of innocent people being executed.

The legislation was passed and signed into law by President Bush, and implementation regulations are now being written. There is a public comment period, in which some of the regulations could be modified, but the role of the U.S. attorney general can only be changed by another act of Congress. The number of people executed annually has dropped about 40 percent -- from 99 in 1998 to 53 last year. The number of people sentenced to death by states has also declined. But, under the Bush administration the number of federal death row inmates has increased. Overall, 3,300 people are now sitting on death row. Between The Lines' Melinda Tuhus spoke with Richard Dieter, executive director of the Death Penalty Information Center in Washington, D.C. He explains how the law will work and what the impact is likely to be on prisoners facing execution.

RICHARD DIETER: The part of the appeals that will be speeded up are the federal appeals of your state case. You usually have a state appeal and then you can check the federal courts to look over the constitutional issues and it’s the federal part that is going to be speeded up by this. It’s giving the fox control over the chicken coop.

BETWEEN THE LINES: So what do you think the impact will be?

RICHARD DIETER: Just to give you an idea, the anti-terrorism law I mentioned earlier has been in effect for ten years, and no state has completely satisfied the “good lawyer” requirements, as determined by the courts, so clearly the states aren’t providing good representation. Now the attorney general is going to decide whether those states are doing okay; we expect that a lot of those states could be approved very quickly and executions would speed up.

BETWEEN THE LINES: I read that one reason Congress wanted to pass this law was to equalize the treatment of death penalty appeals across the different appeals courts around the country, because right now the outcomes are vastly different, ranging from about two percent to about a third of appeals being accepted. Do you accept that rationale?

RICHARD DIETER: That may be part of the goal, although the attorney general only has so much power. But it does put restrictions on all the courts -- all the federal courts, the district courts and the circuit courts -- all have to act within a much shorter period of time. It’s not just that the lawyers will have to file things more quickly -- which they will, if this is approved -- but the judges will have to decide the federal appeals, so you can’t take as much time to review them or maybe have as many hearings. You’re not required to decide a certain percent one way or the other, but with less time, I think the pressure is to move these cases along, to confirm what the states did in approving the death penalty and the conviction, and the judge will have only a limited amount of time. So I think it will result in fewer reversals by the federal courts just because they’ll have less time to review these cases.

BETWEEN THE LINES: I noticed that the American Bar Association spoke out against this provision when it was moving through Congress. I’ve never thought of the ABA as a particularly radical group…

RICHARD DIETER: Right. I mean, the American Bar Association’s main concern is with due process, certainly the quality of representation provided by lawyers. They’ve insisted you have to have good lawyers for trial, and good lawyers for the appeals. And there was at least some protection in the old law that there would be good lawyers for the appeals if you want these appeals to go fast, and the courts would judge whether you’ve got good lawyers. And these are all neutral observers in the system. But now to say that the prosecutor will decide whether you’ve got good lawyers is a strange step indeed – a conflict of interest, to begin with. Prosecutors want the death penalty. Alberto Gonzales …to be in the hands of just one person, who happens to have been Gov. Bush’s legal counsel on death penalty matters in Texas, where they had so many executions. So, clearly, this is a pro-death penalty, not a neutral observer that the courts were supposed to be.

BETWEEN THE LINES: I suppose it’s possible with a different administration, that there might be an attorney general who’s not in favor of the death penalty.

RICHARD DIETER: That’s correct. That’s exactly right, but I think that just underscores the fact that this is the wrong place for the decision to be made, because sometimes you’ll have a pro-death penalty attorney general, sometimes anti. You know, that’s not what should determine whether a state has good lawyers defending death penalty clients. That’s an objective determination, not a political determination. The attorney general’s office is clearly a political office, which will rise and fall or sway back and forth with elections. And this is why we have our courts and our independent federal judiciary and lifetime appointments, etc., so people can make decisions based on the facts and not on their particular persuasion on the death penalty.

BETWEEN THE LINES: And with DNA testing now available, it seems like the chances of someone being proven not guilty in a death penalty case – if there was time to go through that process – might be short-circuited.

BETWEEN THE LINES: Absolutely. We’ve kept track of the people who’ve had their convictions reversed and been freed from death row. There’s 124 such people. Those cases took an average of nine years, so if you cut the appeals process down to, say, five years, a lot of those cases would have been missed. They simply would have been executed before new facts had time to ripen, before courts had a chance to do all the testing or new witnesses to come forward. Faster appeals means more mistakes – I think that’s a high probability. And that’s what this is all about; it’s not just about who makes decisions, but how fast a person has to raise any issues and perhaps show that they were mistakenly convicted. We know that can happen; DNA has shown it in the cases that DNA is available, but there are a lot of cases where DNA is not available, and those are just as likely to have a mistake.

Contact the Death Penalty Information Center at (202) 289-2275 or visit their website at http://www.deathpenaltyinfo.org

Melinda Tuhus is producer of Between The Lines, which can be heard on more than 40 radio stations and in RealAudio and MP3 on our website at http://www.btlonline.org . This interview excerpt was featured on the award-winning, syndicated weekly radio newsmagazine, Between The Lines for the week ending Aug. 31, 2007. This Between The Lines Q&A was compiled by Melinda Tuhus and Anna Manzo. Listen to the rest of this week's Between The Lines news program at http://www.btlonline.org/btl083107.html . If you are interested in Between The Lines Summary, a summary of the week's interviews with RealAudio link, email btlsummary-subscribe@lists.riseup.net

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