Atty. Gen. Alberto R. Gonzales is about to adopt an unnecessary and mean-spirited regulation that will make it harder for those on death row to have their cases reviewed in federal court. State Atty. Gen. Jerry Brown should make clear that California wants no part of this.
To understand what's going on here, you need a little background.
Let's say you were convicted of murder in California. Generally, as soon as you have exhausted your appeals in state court, the clock starts ticking: You have one year to file a petition for habeas corpus in federal court. (A writ of habeas corpus is a request for federal court review of a conviction on grounds that a person is imprisoned in violation of the Constitution and laws of the United States.)
That one-year timeline was set by the Anti-terrorism and Effective Death Penalty Act, adopted in 1996. But that law also allows a shorter time limit -- six months -- in death penalty cases.
Why less time for death penalty cases? It seems perverse, but Congress was actually trying to encourage states to provide lawyers for those on death row.
The Constitution guarantees the right to an attorney at trial when you're facing imprisonment or death and when you appeal your conviction at the state level. Beyond that, you're on your own. But the proceedings that come next -- collectively called "collateral review" -- can be crucial. It's at this stage, which includes habeas corpus petitions, that serious flaws in trial are often exposed, including the kind of mistakes that lead to the execution of innocent people.
Almost no states provide counsel in these crucial proceedings. So the 1996 law laid out this deal: If a state starts providing lawyers to capital defendants, it will get the benefit of a shorter, six-month statute of limitations.
So far, only Arizona has complied. Other states have decided that it's not worth the expense.
Enter Gonzales and the Patriot Act.
When it reauthorized the Patriot Act last year, Congress added a little-noticed provision that lets the attorney general, rather than federal judges, decide whether states are complying with the 1996 law. No one paid much attention, until now.
Gonzales, it has been widely reported, is about to certify California and other states as being in compliance with the 1996 law, in essence just giving them the six-month statute of limitations. But these states have done nothing that this law requires. Everywhere but Arizona, death row inmates still have to pay for their attorneys (unlikely), get pro bono representation (difficult) or represent themselves (unwise). Any "certification" is a lie.
