Rule could 'fast-track' executions

The idea behind the new rules has been years in the making. The federal Anti-Terrorism and Effective Death Penalty Act of 1996 set up a system in which states could take advantage of faster procedures so long as they could prove they had made sure defendants had had adequate counsel in state courts. California and several other states applied to the program starting in the late 1990s. But federal courts ruled that they were not doing enough to provide defendants with competent attorneys.

Frustrated with the pace of changes -- and believing that judges were part of the problem -- death penalty advocates Rep. Dan Lungren (R-Gold River) and Sen. Jon Kyl (R-Ariz.) led a successful effort to include language in the Patriot Act last year that let the attorney general, rather than judges, decide whether states were ensuring death row inmates had adequate legal representation.

Under the law, the attorney general's decision could be challenged before the federal appeals court in Washington.

Justice Department officials are seeking public comment on the rules until Sept. 23, after which they will be finalized "as quickly as circumstances allow," said department spokesman Erik Ablin.

Some critics question whether the rules would have the desired effect. The rules would require that states establish a "mechanism" for supplying lawyers to death row inmates in order to qualify for the expedited procedures but would not ensure that the lawyers were competent or adequately funded, these critics say.

Arizona and California have state-supported programs that aid defense counsel in capital cases, but there are still not enough lawyers to go around. And funding for legal bills and other expenses is far from adequate, lawyers for death row inmates say.

"If you are going to impose the kind of incredibly stringent deadlines that this statute imposes . . . you need to ensure people get adequate representation throughout the state process," said Robert Litt, a former Justice Department official representing the American Bar Assn. in the rule-making dispute. "This is the opportunity that the Department of Justice has missed."

He said: "Without a set of standards to guide the attorney general, there is a tremendous potential for arbitrariness here, and to put a thumb on the scales on the side of the states."

The Judicial Conference of the U.S., the policy-making arm of the federal courts, also sees problems.