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Chemerinsky Howler on Death Penalty Fast Track Regs


A full-scale disinformation campaign is underway in response the U.S. Department of Justice's belated regulations to implement the amendments to the death penalty "fast track" of the Antiterrorism and Effective Death Penalty Act of 1996. Much of what we have seen is political spin, trying to tie the regulations personally to AG Gonzales, who has actually shown little interest in the subject. An op-ed by Erwin Chemerinsky printed last Thursday in the Los Angeles Times takes the grand prize, though. Along with the predictable opinion, this article is riddled with blatantly false assertions of fact.

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.
The "on your own" comment might be defensible in the context of the sentence that precedes it as merely meaning there is no constitutional right to appointed counsel on habeas. So limited, that would be a correct statement of the law. See Murray v. Giarratano, 492 U.S. 1 (1989). Most states do, of course, provide habeas counsel in capital cases, as does the federal government when the case reaches federal habeas, see 18 U.S.C. ยง 3599, so very few death row inmates are actually on their own. One would expect a scholar of Professor Chemerinsky's reputation to acknowledge this in the next paragraph. One would be mistaken.
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.
The first sentence of this paragraph is a flat-out falsehood, as even the most basic research would have disclosed. Justice Stevens summarized the status of state-paid collateral counsel as of 1989 in his Murray dissent, at 30-31 (footnotes omitted):
Of the 37 States authorizing capital punishment, at least 18 automatically provide their indigent death row inmates counsel to help them initiate state collateral proceedings. Thirteen of the 37 States have created governmentally funded resource centers to assist counsel in litigating capital cases. Virginia is among as few as five States that fall into neither group and have no system for appointing counsel for condemned prisoners before a postconviction petition is filed.
But wait, as the late-night pitchman says, there's more from the op-ed:
So far, only Arizona has complied [with the provision of counsel requirements]. Other states have decided that it's not worth the expense.
Now this op-ed is written in a California newspaper by a former USC professor, and its bottom line is directed to the Attorney General of California, so one would expect that the professor has specifically looked into California and confirmed that this state has "decided that it's not worth the expense." Nope.

When AEDPA was enacted, Bill Lockyer was the president pro tem of the California Senate. (He was subsequently elected Attorney General and is now the Treasurer. President pro tem is the real party leader in the California Senate, unlike the nominal position in Washington.) Sen. Lockyer sponsored legislation for the specific purpose of qualifying California for the fast track provisions. Senate Bill 513 passed in 1997 and was signed into law. The State of California, through its Legislature, has unambiguously made exactly the opposite decision from the one Professor Chemerinsky claims. But wait, there's more.

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.

I don't know what reports he is referring to, but I won't challenge this statement as false. California so obviously qualifies under the 1997 legislation that DoJ certainly should certify it swiftly upon finalization of the regulations. The jaw-dropper is what follows:

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.

What?! This is beyond belief. California, among other states, has done nothing the law requires? No state but Arizona provides state-paid habeas counsel? How could a professor of law sign his name to such a statement? How could a major newspaper print it? Even before California passed SB513, the state supreme court appointed habeas counsel for every indigent inmate who asked, as a matter of policy. Not once in the modern capital punishment era has any death row inmate been denied counsel in this state. We have been doing what the law requires in substance -- providing qualified counsel at state expense -- throughout the modern capital punishment era. While the state arguably did not meet some technical requirements of AEDPA prior to 1997, that issue was resolved by legislation a decade ago. Nor are California and Arizona the only states by any means. See, e.g., 42 Pa. C. S. § 9572; Pa. R. Crim. Pro. 904.

Does Professor Chemerinsky know that his article is chock full of patently false statements? It is hard to believe he would knowingly risk his reputation that way. Yet is also hard to believe he does not know or at least suspect they are false. Did he pick up some exaggerated claims from the anti-death-penalty propaganda machine, exaggerate them further in his own mind, and then print them as fact without any checking whatever? That would be extremely reckless disregard of the truth, at the very least.

I emailed the L.A. Times a rebuttal on Friday. As of Tuesday I haven't heard anything from them about printing it, nor have I found a correction on their website. Apparently correcting false, easily checked statements made on the opinion pages is not a high priority.


Wow. They'll smear victims (e.g., Lonnie Johnson's victims), tell patent falsehoods about the law and exaggerate innocence issues, and still the American people support the death penalty. Sounds to me like the American people have a lot more sense than these true believers.

I wonder if Prof. Chemerinsky will deign to respond.

The good professor might still be smarting from his loss in Lockyer v. Andrade, USSC case no. 01-1127, which precluded habeas relief when federal appellate jurists dream up and then apply a new rule not dictated by existing USSC precedent. Of course, this outcome was nothing more than what was dictated by the express terms of AEDPA, although that probably didn't balm the burn by the professor having to suffer the fools in the majority. What a great way to pay back for that defeat, by pontificating with pen about how AEDPA is a tool of oppression.

"The good professor might still be smarting from his loss in Lockyer v. Andrade..."

Nonsense--Chemerinsky loses all of his cases. (It's in the nature of the types of cases he chooses to take.)

Anyway, while Chemerinsky is perhaps guilty of some hyperbole in this op-ed, your response suffers from a stingy pretension to precision that is both self-defeating and at odds with the fact that it is an op-ed we are expounding.

There are two main claims you take issue with. First, you quote Chemerinsky's claim that "[a]lmost no states provide counsel in these crucial proceedings" (i.e., habeas review in death penalty cases). By way of rebuttal, you quote Stevens' Murray dissent. But providing counsel to "help initiate" collateral review is not the same thing as "providing counsel in these crucial proceedings." Nor is "creat[ing] governmentally funded resource centers to assist counsel in litigating capital cases." Nor is (as with VA et al.) failing to do even that much.

(BTW, how could this off-point excerpt from a 1989 dissent possibly provide evidence of the procedural state of play in 2007?)

Second, you counter Chemerinsky's claim that "[s]o far, only Arizona has complied [with the provision of counsel requirements]" with the fact that California enacted legislation aimed at bringing California into compliance. But as you well know, states can't qualify for certification merely by passing a law. And however salutary the other nominal or substantive steps California has taken, the fact remains that Arizona is the only state since the passage of the AEDPA whose compliance has been certified. As such, your suggestion that California's problems on this score were "resolved by legislation a decade ago" is at least as misleading as anything in Chemerinsky's piece.

Chemerinsky said "almost no" states provide state habeas counsel. Eighteen did 18 years ago. All of those still do, plus more. The other 13 that Stevens refers to as providing "help" are irrelevant to the point. That portion of the quote is left in for completeness.

The passage of SB513 is quite clearly cited to refute the claim that California "decided that [compliance is] not worth the expense." Whether it is eventually certified as actual compliance or not, its passage and purpose are conclusive on the point for which the bill is cited.

"Chemerinsky said "almost no" states provide state habeas counsel. Eighteen did 18 years ago."

What Chemerinsky said was that "[a]lmost no states provide counsel in these crucial proceedings." Now you can read him false by interpreting the italicized phrase as "at any point during the post-sentence collateral attack," or you can read him true by interpreting the italicized phrase as "throughout the post-sentence collateral attack." Taking the former tack has only the benefits of theft over honest toil.

"The passage of SB513 is quite clearly cited to refute the claim that California 'decided that [compliance is] not worth the expense.'"

So you were "refuting" (and, I take it, counting as among the alleged "blatant falsehoods") a statement of opinion? Opinions are why they call them op-eds!

"These crucial proceedings" in the article refers to the state collateral attack that typically follows direct appeal and precedes federal habeas. I read it correctly. Your any point/throughout distinction makes no sense. The key question throughout the debate over counsel on state habeas is the need to provide a lawyer to prepare and argue the state collateral petition. Chemerinsky claimed only one state does. In fact, all but a handful do.

The purpose of SB513 to qualify for Chapter 154 is not a matter of opinion. It is crystal clear from the legislative history. Other states have similarly passed legislation for this express purpose. The claim that they have decide not to is not opinion. It is a false assertion of fact.

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