CrimProf Blog

Editor: Kevin Cole
Univ. of San Diego School of Law

Monday, August 27, 2007

CrimProf Dr. Robert Schehr Writes Article Concerning Fast Track Death Penalty Cases

SchehrFrom Northern Arizona University CrimProf Dr. Robert Schehr recently wrote an article concerning fast track death penalty decisions.  Here is an excerpt:

On March 9, 2006, President Bush reauthorized the USA Patriot Act (U.S. Patriot Improvement and Reauthorization Act of 2005). Added to the new bill was Section 2265 "Certification and Judicial Review," which was adopted from Arizona Senator Jon Kyl's 2005 Streamline Procedures Act, a bill that sought to severely restrict federal habeas review (this bill never became law).

Mirroring Section 9 of the Streamline Procedures Act, Section 2265 of the Reauthorized Patriot Act provides the U.S. Attorney General (Alberto Gonzales) with the authority to certify whether states have implemented "a mechanism for the appointment, compensation, and payment of reasonable litigation expenses of competent counsel in State postconviction proceedings brought by indigent prisoners who have been sentenced to death." As well as "whether the State provides standards of competency for the appointment of counsel."

According to a recent article published in the Los Angeles Times (Aug. 14, 2007), the Justice Department is preparing new regulations that will allow the U.S. Attorney General to fast-track death penalty decisions by determining whether States are adhering to Section 2265 of the Patriot Act Reathorization bill. Previously, the authority to make this determination was held by federal judges. In addition, the new procedures would severely shorten the amount of time inmates have to file a federal appeal from its current one year (established in 1996 with the passage of the Anti-terrorism and Effective Death Penalty Act) to six months.

Numerous questions arise regarding handing over the authority to determine whether indigent defendants receive adequate defense resources to the nation's chief prosecutor. For example, would there be a conflict of interest if the Attorney General were to assume responsibility for determining the quality of indigent defense counsel in cases that the state was prosecuting? But there are others, and they are significant. Rest of Article. . . [Mark Godsey]

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