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Gonzales to Get Power In Death Penalty Cases

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By Dan Eggen
Washington Post Staff Writer
Wednesday, August 15, 2007

Attorney General Alberto R. Gonzales, under political siege for his handling of the U.S. attorney firings and other issues, is to get expanded powers to hasten death penalty cases under regulations being developed by the Justice Department.

The rules would give Gonzales the authority to approve "fast-track" procedures by states in death penalty cases, enabling them to carry out sentences more speedily and with fewer opportunities for appeal if those states provide adequate representation for capital defendants.

Such powers were previously held by federal judges, but a provision of the USA Patriot Act reauthorization bill approved by Congress last year hands the authority to the attorney general.

Under the regulations, death row inmates would have six months, instead of a year, to file appeals in the federal courts, and federal judges would have less time to consider petitions in capital cases.

The proposed changes, reported yesterday by the Los Angeles Times, would hand new authority to Gonzales as leading Democrats and some Republicans have called for his resignation and questioned his truthfulness. Earlier this month, Congress gave Gonzales greater powers in overseeing the government's warrantless wiretapping program.

The leaders of the Senate Judiciary Committee, Patrick J. Leahy (D-Vt.) and Arlen Specter (R-Pa.), asked Gonzales in a letter sent earlier this month to delay implementing the new death penalty rules until October at the earliest, "to guarantee adequate representation of death row prisoners before certification occurs."

Justice spokesman Brian Roehrkasse said the department has extended the time for public comment to Sept. 24 "to ensure ample opportunity" for advocacy groups to lodge objections.

Some Democratic lawmakers have questioned Gonzales's judgment about the death penalty, including his refusal to hear the concerns of a federal prosecutor in Arizona, Paul K. Charlton, who argued against pursuing a death sentence in a case in which no body had been recovered.

Charlton and several other U.S. attorneys were fired last year in part because of clashes with Gonzales and his aides over death penalty issues, according to documents and testimony. Both Gonzales and his predecessor, John D. Ashcroft, have supported the aggressive use of death penalty authority in the federal courts.

Many prosecutors and GOP lawmakers have long complained that death penalty cases are needlessly delayed during the federal appeals process. In 1996, Congress implemented a system of "expedited review" for death penalty cases, but required federal courts to first determine that individual states had good systems in place to provide legal representation for defendants.

The arrangement languished amid legal challenges, however.

The department's proposed rules to implement the statute, initially circulated in June, have since come under sharp attack from many defense lawyers and advocacy groups, including the Judicial Conference of the United States, a policymaking body of the federal courts.

Kathryn Kase, a Houston lawyer who serves on the National Association of Criminal Defense Lawyers' death penalty committee, said the Justice Department's proposed regulations are "severely lacking" because they do not provide enough oversight to ensure that defendants are receiving adequate legal counsel.

"In our judgment they allow states to . . . claim they have a capital representation case that is functional, when in fact it might not be functional at all," Kase said. "It may not prevent people from being wrongfully sentenced to death."

Kase and other defense lawyers also say the underlying legislation is faulty because it allows Gonzales, who is the nation's chief prosecutor, to effectively determine the pace of executions.

But Roehrkasse said the rules are narrowly tailored and he noted that Gonzales's decisions about the state programs can be reviewed by a federal appeals court.

The moves toward speedier federal executions come as the number of executions nationwide has dropped, in part because of moratoriums aimed at ensuring that innocent defendants are not wrongfully put to death or subjected to cruelty.

The number of executions fell from a peak of 98 in 2000 to 53 last year, according to the Death Penalty Information Center. Several states have halted executions in recent months because of legal challenges to the use of lethal injection.


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