Seeking justice in a questionable new power

The power Congress granted to the U.S. Attorney General to unilaterally declare that certain states have the right to fast track death penalty cases is fraught with the potential for abuse and mistakes. The system of justice in this country is too prone to human failings of error and sin to make it advisable for fast-track power to be given to anyone. But since Congress did so in the reauthorization of the USA PATRIOT Act, it is incumbent on the DOJ to provide checks and balances to offset the likelihood of problems.

Too many of those convicted of capital crimes have been given inadequate representation when they have been unable to afford to hire an attorney. Here in Texas we have had legal counsel appointed who fell asleep or didn't ask a single question to challenge the case against their client. They have not been provided with financial resources to investigate whether there might be exonerating evidence either.

Both competent counsel and adequate resources to investigate should be a prerequisite before any effort to fast track is done.

Other problems include the many incentives in the system for district attorneys, law enforcement officials, prosecutors, and judges to act in haste or even with malice or other self-interest in pushing for the death penalty. Politically, it has been a winning campaign issue in most of the country to be perceived as tough on crime and pushing for the maximum punishment. The fact that promotions and personal advantage often ride on being perceived as tough on crime make this an area ripe for abuse.

In addition, problems with the way a police line-up was conducted have led to false identification of suspects by eye-witnesses and victims.

In the past few years, new evidence has led to the overturning of numerous convictions in cases where innocent people have been given the death penalty. The death of even a single person innocent of the crime calls into question the whole rationale for the death penalty.

Stringent safeguards ought to be put in place. The Attorney General should do any fast-tracking only after consultation with those whose career advancement doesn't depend on being perceived as tough on crime. The inclusion of members of the Innocence Project and those who lean against the death penalty, as well as those that support it should be a critical component in order to have a broad and diverse group of people providing input, particularly when a penalty of life or death is involved. That diverse input should be built into the system.

The regulations the DOJ puts in place should be written with these questions in mind:

What will the DOJ do to ensure that those convicted of capital crimes are fully informed? Will the DOJ mandate the presentation of the fast track timeline to each prisoner at the time of sentencing? Will you put into place guarantees that failure to provide that information in a way that the defendant can access (orally for those who cannot read, in Spanish for those who lack English, etc.) should be grounds for ineligibility for a fast track process?

That would be a way to discourage misguided or corrupt officials from throwing roadblocks in the way of those trying to appeal a conviction. For Christians and Jews, God is clear (see Exodus 24:7) that it is immoral to put an innocent person to death.