Liptak Love: Gonzo & Capital Punishment

Hi everyone. I’m bean, formerly of A Bird and a Bottle and now of Lawyers, Guns & Money, where I blog alongside the fabulous Scott Lemieux et al. I’m visiting here this week from NYC while Jill travels beautiful Italy, where I am a third year law student and a reproductive and criminal justice activist and advocate. And with that, I’m going to dive right in.


It’s time for your weekly installment of Liptak love, wherein I sing the praises of the New York Times’ Adam Liptak and his Monday (Times Select-shielded) criminal justice columns.

Today, Liptak takes on the death penalty. Specifically, he exposes the provision in the recent reauthorization of the PATRIOT (blech) Act that allows the A.G. (Gonzo himself) to decide whether condemned men and women have had adequate legal representation, and that shortens the time period for filing a habeas petition and narrows the factors a court may consider in evaluating that petition.

Liptak makes clear (through the quotes of others, of course) the incoherence of the law:

“After the courts had repeatedly found that the states were not providing competent defense representation in capital cases, Congress decided to solve the problem by the simple device of having the attorney general announce that it did not exist,” said Eric M. Freedman, a law professor at Hofstra who submitted testimony opposing a version of the new law for the American Bar Association in 2005.

“The attorney general can certify that the moon is made of green cheese, but that will neither make it so nor advance scientific knowledge,” Professor Freedman said. “The way to fix capital defense systems is not to deny that they need fixing, but rather to dedicate the needed resources to improving them.”

Death penalty prosecutions in this country take a long, long time. In California, as Liptak notes, executions are virtually at a standstill, with only 13 executions taking place since the Supreme Court reinstated capital punishment in 1976. In Texas, on the other hand, the most execution happy state in the nation, 379 people have been put to death since 1974.

The federal government’s desire to speed executions, or “grease the wheels of the machinery of death,” per Liptak, is nothing new. In 1996, Congress passed the Antiterrorism and Effective Death Penalty Act (AEDPA). AEDPA put in place the federal habeas restrictions on which this new law builds.

Before the 1996 law, death row inmates who filed habeas corpus petitions in federal court succeeded in overturning their convictions or death sentences about 40 percent of the time. According to the study, which looked at the years 2000 through 2006, that number has dropped to 12 percent. And it continues to fall.

The conservative Fourth Circuit Court of Appeals grants habeas petitions in death penalty cases about 2 percent of the time.

Efficiency might be an admirable goal; death penalty litigation is notoriously inefficient with its mandatory appeals and many opportunities for review (again, narrowed by recent laws). In fact, a favorite statistic of anti-execution advocates is that the litigation surrounding a death penalty prosecution together with the execution itself is more expensive than a life sentence. But efficiency cannot come at the cost of accuracy when death is on the line.

(Also at LGM)


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