New "Fast Track" Death Appeal Rules Still Fall Far Short of Goal of Providing Quality Counsel

One familiar argument in the debate about the death penalty goes something like this: supporters of capital punishment say "defense attorneys just try to delay executions with endless appeals."

Opponents of the death penalty reply: "Give defendants quality lawyers — with reasonable caseloads and adequate resources and adequate compensation — and there won't be so much delay."

Under two Congressional statutes, the Antiterrorism and Effective Death Penalty Act of 1995 and the Patriot Reauthorization, Congress tried to make a new bargain with death penalty states. If the states would give quality representation to death row defendants in state post-conviction proceedings, then the states could qualify for "fast track," abridged federal court review that could significantly expedite executions.

Congress charged the executive branch with the responsibility of implementing rules for this process. The first regulations, proposed by the Bush administration, were seriously flawed. The ACLU, along with numerous other organizations and officials, filed comments objecting to those procedures, ultimately resulting in the withdrawal of those regulations.

The Obama administration has now released new proposed regulations that still fail to address some of the most pressing problems with the quality of counsel in state post-conviction proceedings. On June 1, 2011, the ACLU submitted comments to these proposed rules.

As Attorney General Eric Holder has publicly acknowledged), inadequate funding and high caseloads are some of the most serious barriers to providing quality legal representation in death penalty cases. In our comments, we point out that regulations proposed by the Obama Administration fail to overcome either of these serious problems.

Until these regulations properly address excessive caseloads and adequate compensation for lawyers in these cases, no state should be able to claim it passes the test of effective counsel or qualify for the fast-track federal review.

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