In 1996, when Congress revised the processing of death penalty cases, it created a “fast track” procedure that states could use when defending habeas corpus petitions filed by condemned prisoners in federal court. To avail themselves of the faster deadlines, states had to agree to provide additional resources to death row prisoners as these petitioners pursued their cases in state and then federal court. As of 2006, no state had met the requirements in a particular case.
Frustrated at what it considered to be protracted delays in capital case processing, Congress transferred authority from the federal courts to the Attorney General to decide which states qualify under the fast track option. Should a state meet these requirements and thus “opt in,” the federal courts must decide habeas corpus petitions filed by capital defendants within that state no later than 450 days after opening. An appeal of a habeas corpus claim must be completed within 120 days.
In June 2007, the U.S. Department of Justice under then Attorney General Alberto Gonzalez, released its draft opt-in requirements. In a feat of minimalism, the Attorney General offered but four items. Under the draft proposal, a state may utilize the faster deadlines if it has:
With the exception of requiring “the payment of reasonable litigation expenses,” most of these requirements are easy to meet. So much so, in fact, that virtually any state that seeks to qualify as opt-in should be able to do so under the proposed regulations.
Many groups have sounded off on the inadequacy of the Attorney General’s proposed standards. Missing in the debate, however, is the likely effect on the government body charged with implementing the new policy – the federal courts. As revealed in a report released this past summer, the federal courts take on average nearly three years to process capital habeas corpus petitions. Nor is this an isolated problem among the federal courts. Virtually none of the federal district courts studied currently processes capital habeas petitions within 450 days. Most take two or three times that long.
A speedy justice system is an admirable goal, but before they go about demanding break-neck changes from the federal courts, Congress and the Department of Justice need to consider the likely effects of a relaxed opt-in procedure. The courts do not have unlimited resources to absorb any changes demanded of them. Civil cases and even some criminal matters will have to be put to the side if the federal courts are expected to devote compressed attention to capital habeas corpus petitions.
For that matter, if the other two branches are truly concerned about the processing of habeas corpus cases, they would do well to consider other options besides a stepped-up deadline in federal court. Cases do not magically appear on the steps of the federal courts ready to be decided; they begin usually in state courts, where too few states are able to devote the resources necessary to ensure that convictions have been carefully scrutinized.
If we truly seek to reform the litigation of capital cases, if it is justice we are after and not merely speed, then changes need to occur before cases even get to federal court. To demand an arbitrary deadline, to point fingers at the federal courts and insist that they put everything aside to remedy the problems created in other courts, is to offer up scapegoats not solutions. Capital cases are serious business. They demand a better response.
Jon B. Gould
Associate Professor and Director, Center for Justice, Law & Society
George Mason University