Deader, faster

It seems only fitting that perhaps the most incompetent attorney in the land will now be responsible for deciding if those sentenced to death have been adequately represented (Time$elect).

Death penalty cases can take a long time. Attorney General Alberto R. Gonzales wants to move things along.

Under an odd provision in last year’s reauthorization of the USA Patriot Act, the antiterrorism law, the attorney general is to take on a role that has for more than a decade belonged to the courts. After the Justice Department finishes writing the regulations, Mr. Gonzales will get the job of deciding whether states are providing condemned inmates with decent lawyers.

If the answer is yes, federal litigation in capital cases from those states — one of the main reasons for the lengthy appeals — will move to a fast track. Inmates will have to file habeas corpus challenges in six months rather than a year, and judges will be subject to strict deadlines. Appeals courts, for instance, will get 120 days to decide cases.

The trade-offs themselves are not new, and they are not necessarily a problem. If states can be encouraged to provide able defense lawyers to death row inmates in state proceedings, the federal courts may indeed have less to worry about.

But giving the power to decide when a fast track is warranted to an interested party like Mr. Gonzales is a curious way to run a justice system.

“A first-year law student could spot this conflict of interest a mile away,” said Elisabeth Semel, the director of the death penalty clinic at the University of California, Berkeley, and an opponent of the death penalty.

The move can only represent Congressional dissatisfaction with the decisions of the dozens of federal judges who have considered the adequacy of state systems to provide death row inmates with qualified defense teams over the last decade.

With one partial exception, they have found that the states are not yet where they should be. (The exception is Arizona, which a federal appeals court said had an adequate system on paper, at least as of 1998, though the court also ruled that the system had not been followed in the case before it.)

Opponents of the death penalty say Congress wants Mr. Gonzales to speak power to truth.

“After the courts had repeatedly found that the states were not providing competent defense representation in capital cases, Congress decided to solve the problem by the simple device of having the attorney general announce that it did not exist,” said Eric M. Freedman, a law professor at Hofstra who submitted testimony opposing a version of the new law for the American Bar Association in 2005.

“The attorney general can certify that the moon is made of green cheese, but that will neither make it so nor advance scientific knowledge,” Professor Freedman said. “The way to fix capital defense systems is not to deny that they need fixing, but rather to dedicate the needed resources to improving them.”

Adam Liptak concludes,

It is true that the capital justice system is not efficient. But efficiency cannot be the only goal. Accuracy must matter, too.

“The notion that the federal government wants to accelerate executions in the face of known mistakes, and wants to do so just as DNA is becoming available in more and more cases, is mind-boggling,” Professor Dow said. “It will increase the risk that some state executes a person we later find to be innocent.”

I don't know what the fuss is about. After all, Abu Gonzalez has a long history of defending people heading to the gallows.