Bad Judgment
The attorney general may soon have unwarranted power

Bad Judgment The attorney general may soon have unwarranted power in death penalty cases.

Editorial: Washington Post August 22, 2007

ASKING Attorney General Alberto R. Gonzales to be the arbiter of the quality of legal representation for death row inmates is a little like asking the head coach of the Dallas Cowboys to pick the starting lineup for the Washington Redskins, just before the two teams are set to play. It's a bad idea, even if the Dallas coach were the most honorable person in the land. Yet that's the situation created by a little-noticed change in death penalty law, with obviously higher stakes and with an attorney general who has been less than trustworthy.

Under a provision of the USA Patriot Improvement and Reauthorization Act, states may ask the attorney general to approve their programs for providing lawyers to death row inmates who appeal their convictions in federal courts. As the Los Angeles Times first reported last week, states whose programs are certified by the attorney general will then have the right to fast-track those appeals. After exhausting their appeals, inmates would have six months to file federal habeas corpus petitions; they now have one year, although that deadline is often ignored or extended.

Judges would also be under greater time pressure because of extraordinary deadline provisions in the law. Appeals courts, for example, would have at most four months to rule on the merits of challenges. The attorney general's decisions would be subject to review by the U.S. Court of Appeals for the D.C. Circuit, but neither the law nor the rules crafted by the Justice Department to implement the law specify how much leeway that court will have.

The idea of allowing states a more efficient way to process federal habeas petitions in exchange for providing qualified counsel for death row inmates is not new. The same principle was incorporated into a 1996 federal law. But that law, unlike the present one, called for the federal courts -- not the country's top prosecutor -- to decide whether state programs were up to snuff.

The law and the new Justice Department rules governing its use lack specificity on what constitutes competent counsel, especially in the labyrinthine world of capital punishment litigation. The rules also suggest that a state's certification cannot be revoked even if the state changes the program or fails to follow its own dictates. The Justice Department should address these flaws and provide clearer guidance through the ongoing rule-making process.

What is not fixable through administrative tinkering is the absurd provision that the attorney general certify the state programs. Congress should rewrite the law to restore the courts as the first and final arbiters. No attorney general should be making these decisions -- especially not Mr. Gonzales, who as legal counsel to then- Gov. George W. Bush of Texas gave notoriously short shrift to death row inmates seeking clemency from the governor.

We oppose capital punishment, but if the criminal justice system is to impose the ultimate penalty, it must do so with exacting standards and fairness. This law lacks both.