Attorney General William Barr addressed the Fraternal Order of Police today. His remarks as prepared are available on the USDOJ website. There are several gold nuggets in this speech. For this post, I will quote just one paragraph:
This Administration will not tolerate violence against police, and we will do all we can to protect the safety of law enforcement officers. I will share with you one proposal that we will be advancing after Labor Day. We will be proposing legislation providing that in cases of mass murder, or in cases of murder of a law enforcement officer, there will be a timetable for judicial proceedings that will allow imposition of any death sentence without undue delay. Punishment must be swift and certain.
I am elated that speeding up the needlessly and grotesquely protracted proceedings in capital cases is getting the personal attention of the Attorney General. However, the chances of getting death penalty fast track legislation through Nancy Pelosi's House of Representatives are essentially nil, so why don't we see what we can do with existing law?
Congress enacted fast-track legislation in 1996 and amended it in 2006. It is Chapter 154 of Title 28 of the United States Code, sections 2261-2266. It is far from perfect, but any congressional tinkering in the present political environment is likely to produce a net step backward, not forward.
Most of the chapter applies to federal court review of state capital judgments, but there is one nugget for federal judgments. "The adjudication ... of any motion under section 2255 by a person under sentence of death [] shall be given priority by the district court and by the court of appeals over all noncapital matters." 28 U.S.C. §2266(a). That has been the law for 23 years. Are the federal district courts and courts of appeals obeying it? No. So do something about it. Insist they obey the law, and if they refuse take a writ to the Supreme Court.
The vast majority of capital sentences are, of course, from state courts, not federal courts. For state courts, Congress provided a fast track for states that provide adequate counsel in state collateral review, which most states do if "adequate" means "adequate" and not "capital defense wildest dreams."
The fast track requires the district court to complete federal habeas corpus in a year and three months from the filing of the petition. The court of appeals must decide the appeal in four months from the filing of the reply brief. Petitions for rehearing must be decided in 30 days from the filing of the opposition. If granted, the decision on rehearing must be rendered in four months.
Along with this great and obvious benefit, there is a more subtle but very important benefit. Under the fast track, there is no ping-ponging between state and federal court. Section 2264 has its own rule on when claims not made in state court can be considered. A claim not made to state court either qualifies for the exception and is considered or does not and is not. No returning to state court to "exhaust," with all the delay that entails.
The 2006 amendment vested the Attorney General with the initial decision of whether a state qualifies, subject to review by the D.C. Circuit, which in turn is subject to review by the Supreme Court. The Bush Administration dragged its feet on implementation because its priorities were on terrorism. The Obama Administration dragged its feet and failed to vigorously oppose attacks on its regulations because AG Holder et al. really don't like the death penalty. When they finally did promulgate regulations, they included unnecessary provisions that discourage states from applying and reduce the value of certification.
The Trump Administration has done nothing in its first two and half years because, apparently, priorities were elsewhere. Looks like that has changed. So what can be done?
First, rescind the regulation that puts a five-year expiration on certifications, 28 CFR §26.23(e). This regulation is patently illegal. Congress provided that states qualify once the Attorney General has made the required certification that the state has adopted the required measures. There is no authorization for an automatic rescission of that certification. The APA process for rescinding this illegal regulation should be commenced immediately, not waiting for other measures.
Second, on parallel tracks, proceed with the pending Arizona and Texas applications and reexamine the rest of the regulation. The other deficiencies can possibly be dealt with through application to specific cases, but given the de novo review in the D.C. Circuit, which is a changed court due to the Obama appointments, cleaning up the regulation is needed as well.
Third, import a big batch of pentobarbital and distribute it to the states, so they are not tied up in litigation over sub-optimum alternatives.
None of these efforts should be limited to mass murderers and cop-killers. They deserve their judgments in spades, to be sure, but so do people who rape and murder children, to name just one example.
Very few capital cases involve any doubt at all that we have the right guy. The single largest source of litigation is over evidence of "background" that has nothing to do with the crime and not much to do with culpability. We are spending ten times as much time as we need to on such claims. There is a great deal the Attorney General can do under existing law. Please get to it, Mr. Barr.
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