March 01, 2014

States Seek Acceleration of Death Penalty Proceedings

A number of states are considering proposals that would accelerate the state death penalty appeal process. Opponents of these measures are concerned that a shortened appeal process will make it more difficult for death-sentenced prisoners to meaningfully challenge their convictions and sentences. Death-sentenced prisoners, who already have great difficulty securing competent counsel, will have less time to find assistance before a statute of limitations bars future appeals.

Most states currently have two consecutive stages of state court judicial review following a criminal conviction: direct appeal and post-conviction, which is sometimes referred to as state habeas corpus proceedings. Challenges to a conviction or death sentence brought during direct appeals must be based on evidence already in the trial record. Once the direct appeal is complete, a defendant can file a petition alleging a violation of his state constitutional rights, such as the right to effective counsel at trial. These post-conviction petitions must include extra-record claims based on newly developed or discovered evidence that was not considered at the original trial.

Several death penalty jurisdictions, including Alabama, Arizona, California, and Kansas, are considering proposals that would accelerate their appeals processes either by conducting the two different stages concurrently or by limiting the overall time for the completion of both appeals. Pending legislation in Alabama would require defendants to file post-conviction petitions within 180 days of filing their first direct appeal—long before courts usually issue direct appeal decisions and more than six months earlier than the current deadline.

Alabama Attorney General Luther Strange has led the effort to change Alabama’s procedures, arguing that it is necessary because “it can take decades for inmates to see the execution chamber” and that the proposed legislation would “end the excessive delay that prolongs pain and postpones justice for the victims of these heinous crimes.” However, opponents of the bill say that the proposed changes would result in less reliable death-sentencing. Bryan Stevenson, executive director of the Equal Justice Initiative, stated that “death row inmates in Alabama already have serious issues finding adequate counsel to represent them during the appeals process.” He also argued that the bill could drive up the cost of the death penalty in Alabama because “the state could end up spending money on a [post-conviction] process that would be unnecessary if the inmate won on direct appeal.”

The state of Arizona has proposed a court rule that would go a step further than Alabama’s bill. In January 2014, Arizona Attorney General Tom Horne filed a petition with the state supreme court asking it to amend the Arizona Rules of Criminal Procedure to consolidate the appeals of both stages into a single opportunity for judicial review. Kansas and California, meanwhile, are seeking to simply limit the overall time allotted for the entire review process. A ballot initiative in California would require state courts to conduct both direct and post-conviction appeals within five years of the conclusion of trial. Currently in California, it takes about five years just to appoint attorneys for direct appeal proceedings. Kansas’s proposed legislation requires an even shorter timeframe for the appeal process, allowing only three and one-half years. Lawmakers in Missouri and Tennessee have also announced their intentions to file similar legislation.

Critics of efforts to limit appeals argue that speeding up the process increases the chances that an innocent person will be executed because of the time and effort required to prove innocence. It took an average of ten years for the 144 individuals sentenced to death and later exonerated in the United States since 1973 to prove their innocence. Opponents of the proposed legislation also note that although it leads to more executions, it also impedes access to justice. Post-conviction challenges are time-consuming because they require a completely independent investigation and review of the trial. Shortening the time period gives appellate lawyers less time to effectively search for errors or to discover new evidence that could exonerate their client.

Accelerating the appeals process will make a life-or-death difference for some defendants. For example, in 2012, Sidley Austin won a new trial for Alabama prisoner William Ziegler 11 years after his initial conviction. Sidley’s investigation of the trial revealed that Mr. Ziegler’s trial counsel were so incompetent that one attorney actually discarded a key piece of evidence that could have incriminated an alternate suspect. They also discovered instances of prosecutorial misconduct and dishonest jurors who lied during jury selection. Mr. Ziegler is one of five Alabama prisoners who have been granted new trials in recent years but could have been executed under the proposed legislation before the injustices in their cases came to light.