ACSBlog: The Blog of the American Constitution Society

Attorney General Gonzales will gain new power over state death penalty cases, according to TPMmuckraker.

The Los Angeles Times provides background:

The rules implement a little-noticed provision in last year's reauthorization of the Patriot Act that gives the attorney general the power to decide whether individual states are providing adequate counsel for defendants in death penalty cases. The authority has been held by federal judges.

Under the rules now being prepared, if a state requested it and Gonzales agreed, prosecutors could use "fast track" procedures that could shave years off the time that a death row inmate has to appeal to the federal courts after conviction in a state court.

The move to shorten the appeals process and effectively speed up executions comes at a time of growing national concern about the fairness of the death penalty, underscored by the use of DNA testing to establish the innocence of more than a dozen death row inmates in recent years.

Alan Berlow wrote an article in the Atlantic in July/August 2003 that examined how Alberto Gonzales, when he was legal counsel to Texas Governor George W. Bush, prepared 57 death penalty memoranda for Governor Bush's review.

Gonzales's summaries were Bush's primary source of information in deciding whether someone would live or die. Each is only three to seven pages long and generally consists of little more than a brief description of the crime, a paragraph or two on the defendant's personal background, and a condensed legal history. Although the summaries rarely make a recommendation for or against execution, many have a clear prosecutorial bias, and all seem to assume that if an appeals court rejected one or another of a defendant's claims, there is no conceivable rationale for the governor to revisit that claim. This assumption ignores one of the most basic reasons for clemency: the fact that the justice system makes mistakes.

A close examination of the Gonzales memoranda suggests that Governor Bush frequently approved executions based on only the most cursory briefings on the issues in dispute. In fact, in these documents Gonzales repeatedly failed to apprise the governor of crucial issues in the cases at hand: ineffective counsel, conflict of interest, mitigating evidence, even actual evidence of innocence.