March 01, 2017

Alabama Considers Unitary System for Appealing Death Sentences

The Alabama legislature is considering whether to enact the Fair Justice Act (“FJA”), a bill proposed by State Senator Cam Ward after encouragement by State Attorney General Steven T. Marshall. Two nearly identical bills have been introduced separately in the House (H.B. 260) and in the Senate (S.B. 187).

Both bills would require the trial court to appoint post-conviction counsel within 30 days of a defendant’s death sentence, to proceed concurrently with the defendant’s direct appeal review. Both bills would also mandate that the Alabama State Bar Association and the Alabama Supreme Court must maintain a list of qualified capital post-conviction counsel available for appointment in these cases. The legislation then provides three generic qualifications for post-conviction counsel. The qualifications do not meet the standards provided by the ABA Guidelines, which are intended to be the minimum requirements for capital counsel.   

Along with the provision of counsel and qualifications of counsel, the proposed legislation also imposes tight timeframes on post-conviction review. H.B. 260 would require counsel to file a capital defendant’s post-conviction petition within six months of the defendant’s filing of his direct appeal brief to the Alabama Court of Criminal Appeals (“CCA”). S.B. 187 would grant a habeas petitioner one year in which to file his initial petition. The trial court may grant one 90-day extension for the filing of the initial state habeas petition upon a showing of good cause by defense counsel and notice and an opportunity to be heard by the State.

The FJA also introduces strict deadlines for state post-conviction courts to issue their opinions regarding capital cases. A trial court must issue an order regarding whether to hold an evidentiary hearing within 90 days after the State files its response to the capital petitioner’s initial petition. If a capital post-conviction petition is still pending in the trial court after the CCA issues its judgment on the direct appeal, the trial court must issue a final order within 180 days of the CCA’s certificate of judgment. 

Perhaps most significantly, the FJA would prohibit a capital petitioner in state court from amending his habeas petition after the six-month deadline for filing the initial petition has passed. That is, the petitioner must assert all claims for relief in a petition filed only six months after his direct appeal brief has been filed. Any claims presented after the initial filing window lapses will be deemed waived. The state courts will treat amended petitions as successive petitions, which have historically low chances of success.

As a result of this legislation, petitioners in state court will have very little time to investigate their state claims as required by the ABA Guidelines. State habeas petitioners will be unable to develop claims regarding ineffective assistance of appellate counsel or to amend their initial state habeas petitions with these claims once the direct appeal judgment is finalized.

It is also highly likely that the bill’s time restrictions on when claims may be asserted will have detrimental effects on those petitioners who seek additional review in the federal system once they complete the state post-conviction process. If a petitioner seeks to introduce additional claims regarding issues such as ineffective assistance of counsel or state misconduct as new evidence comes to light, the petitioner’s claims will likely be deemed waived given the state courts’ new limitations on amending initial habeas petitions. As a result, this will preclude the petitioner from federal review on these claims, as the federal court will view the newly asserted claims as procedurally defaulted under state law.

While the purported goal of the bill is to streamline the capital appeals process, the bill faces many of the same flaws of related proposed legislation in other states, such as Proposition 66 in California. Imposition of the new post-conviction procedures on only capital petitioners—but not non-capital or other defendants—may violate constitutional equal protection and due process rights. The stringent deadlines imposed on courts to adjudicate capital cases raise concerns regarding the separation of powers. The combination of representation issues, potential equal protection violations, and separation of powers concerns suggest that the Fair Justice Act will meet significant pushback by litigators and advocates before it is able to take effect, assuming it secures a majority of votes in the legislature.