Bush Plans to Cut Right of Appeal in Death Penalty Cases

Bush's lethal legacy: more executions

The US already kills more of its prisoners than almost any other country. Now the White House plans to cut the right of appeal of death row inmates...

By Andrew Gumbel in Los Angeles
Published: 15 August 2007

The Bush administration is preparing to speed up the executions of criminals who are on death row across the United States, in effect, cutting out several layers of appeals in the federal courts so that prisoners can be "fast-tracked" to their deaths.

With less than 18 months to go to secure a presidential legacy, President Bush has turned to an issue he has specialised in since approving a record number of executions while Governor of Texas.

The US Attorney General, Alberto Gonzales - Mr Bush's top legal adviser during the spree of executions in Texas in the 1990s - is putting finishing touches to regulations, inspired by recent anti-terrorism legislation, that would allow states to turn to the Justice Department, instead of the federal courts, as a key arbiter in deciding whether prisoners live or die.

The US is already among the top six countries worldwide in terms of the numbers of its own citizens that it puts to death. Fifty-two Americans were executed last year and thousands await their fate on death row.

In some instances, prisoners would have significantly less time to file federal appeals, and the appeals courts significantly less time to respond. On the question of whether defendants received adequate representation at trial - a key issue in many cases, especially in southern states with no formal public defender system - the Attorney General would be the sole decision-maker.

Since Mr Gonzales is a prosecutor, not a judge, and since he has a track record of favouring death in almost every capital case brought before him, the regulations would, in effect, remove a crucial safety net for prisoners who feel they have been wrongly convicted.

Elisabeth Semel, a death penalty specialist at the University of California law school in Berkeley, said the intention of the proposed regulation was clear: "To make it more difficult for people who have been sentenced to death in state courts, including those sentenced without adequate representation and resources, to avoid being executed."

The regulations, first made public by the Los Angeles Times, will be subject to a public comment period extending into September. They will then be enacted "as quickly as circumstances allow", according to a Justice Department spokeswoman.

The administration's enthusiasm for capital punishment runs counter to the recent trend away from the death penalty in many states. Last year saw the lowest number of capital convictions across the country - 114 - since the death penalty was reintroduced in the early 1970s. The development of DNA testing has raised uncomfortable questions about the safety of many capital convictions, prompting Illinois to call a halt to all its executions and triggering reviews in many other states.

Over the past two years, doubts have also arisen over the most popular method of execution - death by lethal injection - because medical research has suggested prisoners may die in agony. One of the cocktails of drugs typically administered, pancuronium bromide, paralyses the body, masking any pain without necessarily alleviating it.

California and half a dozen other states imposed moratoriums pending a study of a new cocktail of drugs that would overcome the constitutional ban on "cruel or unusual" punishment. Some states, including Tennessee, South Dakota and Florida, have either resumed executions or are planning to do so. But California, which has 600 prisoners on death row, shows no signs of executing anybody in the near future.

President Bush has always been a death penalty enthusiast. The 152 prisoners he dispatched to their deaths in his eight years as governor of Texas set a high-water mark unmatched before or since.

According to official memos, Governor Bush would give the green light to executions based on no more than a half-hour briefing from Mr Gonzales. Mr Gonzales, in turn, often omitted mitigating evidence.

At no time has Mr Bush seen any contradiction with his avowed commitment to the sanctity of life. As President he has even instituted a National Sanctity of Human Life Day, which, he has said, "serves as a reminder we must value human life in all its forms, not just those considered healthy, wanted, or convenient".

If the regulations come into effect, they would raise serious questions about the ability of wrongfully convicted prisoners to overturn sentences. Kenny Richey, a Scot who has been on Ohio's death row for close to 20 years, is still alive - and, it appears, on the verge of having his sentence quashed - because of the intervention of a federal appeals court on his behalf.

Four years ago, a Missouri man, Joe Amrine, was released after 17 years on death row after the collapse of all evidence that led to his conviction for a jail murder. The state argued, with a straight face, that even the establishment of innocence was not a reason to stop his execution, because nothing had been procedurally incorrect about his original trial. Again, it was a federal appeals court that weighed in on Amrine's behalf.

To date, 123 prisoners sentenced to die have been proved innocent and released. Anti-death penalty activists and lawyers have raised serious doubts about hundreds of others.

Supporters of a quicker legal process argue that it is unacceptable to sentence someone to die and then wait 17 or 18 years, on average, for the sentence to be carried out. Keeping prisoners on death row is expensive - about $90,000 a year, on average - as are the legal costs of appeals.

2006 executions

China: 1,010+

Iran: 177

Pakistan: 82

Iraq: 65+

Sudan: 65+

USA: 53

Saudi Arabia: 39+

Yemen: 30+

Vietnam: 14

Kuwait: 10+

Source: Amnesty International, based on 2006 figures

+ symbol indicates that the figure is a minimum one; the true figure may be higher due to state secrecy or a lack of available information