Wearing the 'toughness badge': status hurry to carry out executions.

The recent movie Dead Man Walking takes its name from the ritual death march convicted killers make on their way to be executed. And if it's true that art imitates life, the film may ultimately come to be seen as a cinematic death knell for the habeas appeals process. In 1995, more men walked to their deaths in U.S. prisons than in any year since 1957. No women were executed last year, but 50 are on death row.

Fifty-six convicted killers were executed last year--49 by lethal injection and 7 by electrocution, according to Richard Dieter of the Death Penalty Information Center, a nonprofit group in Washington, D.C., that tracks death penalty cases. Of the 38 states that have death penalty laws, 16 carried out executions in 1995.

"The jump in executions was significant because we only had 31 executions in 1994," Dieter said. "But it was also somewhat inevitable because a lot of these cases were running out of appeals."

Currently, more than 3,000 men and women are on death row, he said, so 1996 will likely see an even greater number of executions carried out. (Richard Carelli, 1995 Executions Tops in 38 Years, Chi. Daily L. Bull., Dec. 29,1995, at 2.

Dieter attributes the increased pace of executions to four factors: (1) an end to federal funding for post-conviction defender organizations--known as PCDOs--to assist with death row appeals, (2) attempts by Congress to revise laws governing state prisoners' access to the federal courts, (3) moves by some states to speed the appellate process in death penalty cases, and (4) a mood shift in the executive and judicial branches favoring swifter executions.

Bryan Stevenson, a former PCDO head in Alabama, agreed with this analysis. "All of these factors are borne out of a political process that sees the death penalty as a no-lose issue. States are competing among themselves to see who can wear the toughness badge."

Stevenson added that Congress did not eliminate the PCDOs to save money but to preclude them playing a role in the judicial process. "Eliminating our centers was another way to say you were getting tougher on crime," he said.

Funding cuts have not deterred Stevenson and former PCDO attorneys in other states who are determined to continue representing those on death row. Many of them are trying to reorganize the centers into private, nonprofit agencies. Stevenson's group has been recast as the Equal Justice Initiative of Alabama. (Marcia Coyle, Death Resource Centers Reborn as Private Groups, Nat'l L.J., Jan. 15, 1996, at A9.

In the past year, Congress has considered legislation that would revise the laws governing state prisoners' access to the federal courts. The Senate passed legislation as part of its antiterrorism bill (S. 735), according to Steven Hawkins, director of the National Coalition to Abolish the Death Penalty. The House has its own antiterrorism bill (H.R. 2703), which has not yet passed. "Both antiterrorism bills contain draconian habeas revisions," Hawkins added.

Specifically, the antiterrorism bills allow states the option of providing counsel for death row inmates at the state post-conviction level. "States can either opt in or opt out," Hawkins said. "If states opt in, two rules apply. First, there is a six-month statute of limitations to file a federal habeas petition once inmates have exhausted their appeals at the state post-conviction level. And, second, the federal district judge must hold a hearing within 120 days of the petition and issue an opinion no later than 60 days after the hearing."

If states opt out, Hawkins said, death row inmates have one calendar year in which to file their federal habeas petition once they have exhausted their appeals at the state post-conviction level.

The proposed legislation would also place "unheard of" restrictions on the federal judiciary, Hawkins said. "Attempting to hurry up the federal judges seems to be a violation of the separation of powers and will likely be challenged at some point," he said.

Finally, the proposed legislation would force federal judges to adhere to a deferential standard when reviewing constitutional errors made at the state court level. "Deferring to the states in this way would give them way too much discretion," Hawkins argued.

In states such as Arkansas and Texas, he pointed out, state judgeships are elected positions, making judges vulnerable to political pressure on hot-button issues like capital punishment. "Federal judges are appointed for a reason," Hawkins said. "They--not the states--are the final guardians of the U.S. Constitution."

Speed Traps?

There is also a trend in the states to speed up the appellate process in death penalty cases. In Virginia, for example, a law that took effect July 1, 1995, sets new deadlines for habeas corpus appeals and eliminates a stage of the appeals process. The legislation also requires that local courts set an execution date within 70 days after an inmate's petition has been rejected by the Virginia Supreme Court or the federal appeals court.

A spokesman for Virginia Attorney General James Gilmore said that the new rules are expected to shorten the time between conviction and execution by at least two years in Virginia, which puts more prisoners to death than any other states except Florida and Texas. (Peter Baker, Va. Has Record of 9 Executions Planned for Next 3 Months, Wash. Post, Sept. 20, 1995, at B1.)

The Lone Star State led the nation in executions last year. Larry Fitzgerald of the Texas Department of Criminal Justice attributed the first-place finish to "the aggressive bunch of prosecutors we have in Texas. It's also a reflection of the wishes of the voters down here."

Bringing Closure

Fitzgerald said the primary reason states use the death penalty is to give victims' families closure. "That's why we want to speed up the appeals process," he said. "Try telling someone that waiting 8 to 10 years to execute the person who killed their loved one is justice."

He also estimated that it currently costs states several million dollars to execute an inmate (including the appeals process), but it only costs about $58 a day to keep someone alive in prison. "At $58 a day, an inmate would have to live a very long time in prison before the cost would approach several million dollars," Fitzgerald said. "The lengthy appeals process in a capital case is what drives up the cost."

Jerry Summers, chair of ATLA's Criminal Law Section, said that the push for capital punishment "is a cyclical response to people's fears about crime in this country. When politicians and other elected officials feel the pendulum swing, they swing with it to remain in office."

Ronald Tabak, who chairs the Death Penalty Committee of the American Bar Association's Section on Individual Rights and Responsibility, said the federal judiciary is clearly feeling the pressure--and has for some time.

Since 1983, the Supreme Court has erected a series of procedural roadblocks to the federal habeas process that makes it very difficult for an inmate to press for habeas relief where there has been inadequate or incompetent legal representation," he said. "As a result, the consequences of having an inept or inexperienced trial lawyer have become increasingly fatal in capital cases. This is because it has become virtually impossible to get relief where the valid constitutional claims these trial lawyers negligently failed to raise are held to have been waived."

Dieter agreed that in recent years the federal judiciary has been reluctant to grant appeals in capital cases. But he believes many judges remain concerned about the quality of representation inmates receive.

"I think you will see frustration and concern in the next few years as the judiciary feels the effects of PCDO defunding," Dieter said. "When an appeal reaches them and they realize how bad the quality of representation is, I think they will kick it back," he said. "Even conservative federal judges are worried about minimal representation in death penalty cases."

Civil Defense

ABA committee chair Tabak said there is a great need for plaintiffs' lawyers from the civil bar to act as cocounsel in capital. cases. "To assist with court filings and to do the legwork on local witness interviews is critical in death penalty cases," he said. "Ways have to be found to get this work done."

Tabak admitted that the body of law in federal death habeas cases is substantial and "not something lawyers have a reason to run across every day, so it is particularly understandable for civil attorneys to be wary about getting involved --but substantial training materials are now available."

Stevenson of the Equal Justice Initiative noted that "being intimidated by capital cases is readily understood, but it cannot undermine the most important issue--a commitment to justice. The bottom line is we need lawyers to assist those of us from the PCDO era who remain vigilant in our representation of death row inmates."