‘Express lane to death’: Texas seeks approval to speed up death penalty appeals, execute more quickly



>>The longest serving death row inmates in Texas The gurney in Huntsville, Texas, where Texas' condemned are strapped down to receive a lethal dose of drugs is shown.

>>The longest serving death row inmates in Texas The gurney in Huntsville, Texas, where Texas' condemned are strapped down to receive a lethal dose of drugs is shown. Photo: Pat Sullivan, STF Photo: Pat Sullivan, STF Image 1 of / 44 Caption Close ‘Express lane to death’: Texas seeks approval to speed up death penalty appeals, execute more quickly 1 / 44 Back to Gallery

Texas is seeking to speed up executions with a renewed request to "opt in" to a federal law that would shorten the legal process and limit appeals options for death-sentenced prisoners.

Defense attorneys worry it would lead to the execution of innocent people and — if it's applied retroactively, as Texas is requesting — it could end ongoing appeals for a number of death row prisoners and make them eligible for execution dates.

"Opt-in would speed up the death penalty treadmill exponentially," said Kathryn Kase, a longtime defense attorney and former executive director of Texas Defender Services.

A spokeswoman for the state's attorney general framed the request to the Justice Department as a necessary way to avoid "stressful delays" and cut down on the "excessive costs" of lengthy federal court proceedings.

"Opting-in would serve several purposes for Texans, including sparing crime victims years of unnecessary and stressful delays, ensuring that our state court judgments are respected by federal judges as cases progress, and reducing the excessive costs of lengthy federal court proceedings," said the spokeswoman, Kayleigh Lovvorn.

The Department of Justice declined to comment, and a representative of Gov. Greg Abbott's office referred questions to the state attorney general.

The request — which comes after years of declining executions — has sparked a federal lawsuit and hundreds of pages of comments from a broad coalition of concerned parties including the ACLU, the American Bar Association, Mexico's government, a former federal judge and dozens of defense attorneys.

There's doubt among the defense bar whether Texas actually meets the qualification criteria. Approval is up to Attorney General Jeff Sessions, the nation's top law enforcement officer who recently advocated for capital punishment for drug dealers in some cases.

If Sessions gives the green light to the Lone Star State's application, it will be the first opt-in approval in the more than two decades since the law's inception.

For attorneys like Casey Kaplan — who helped free a wrongfully convicted Harris County man, Alfred Dewayne Brown, from death row — that's a chilling possibility.

"In an environment like Texas where you know the state gets it wrong — and not just accidentally, but intentionally — why in the world would you ever take steps to speed up the process to execute a potentially innocent person?" he said. "Until somebody can answer that question, they should be taking steps to slow it down."

Whitewashing failure

The state's hopes for fast-tracking a path to execution date back to at least 1996, when Congress passed the Antiterrorism and Effective Death Penalty Act.

Written in the tough-on-crime 1990s and in the aftermath of the 1995 Oklahoma City bombing that killed 168 people, the law set time limits to expedite federal appeals in death penalty cases and gave greater deference to state courts.

"We are about to curb these endless, frivolous appeals of death sentences by those convicted of murder," then-U.S. Sen. Bob Dole said at the time. Nationally, the average time between sentencing and execution has continued to rise, according to the Death Penalty Information Center.

But in addition to what is already in place, the law opens the door to creating even tighter deadlines with a special opt-in provision under a section called Chapter 154.

In order to qualify for Chapter 154 certification, states have to prove they offered good enough lawyers earlier in the process, during the so-called "state habeas" appeal. If the condemned were all able to get competent, sufficiently paid attorneys with the funds to afford things like investigators and specialists during the state habeas appeal, then the law would permit speeding up the later federal habeas appeal.

"Opt-in presumes that we've reached this promised land of excellent and well-resourced legal representation at all levels for everyone on death row and in fact we have not," Kase said.

The letters submitted to the government early this year were highly critical of Texas' current defense system, calling it "inadequate" and "infected" by "well-publicized failures," pointing out that the state doesn't even guarantee counsel for all types of post-conviction proceedings.

So far no state has qualified.

But in November, Sessions fired off letters to Texas and Arizona — two states that previously put in certification requests —and asked if they still wanted to apply.

They did.

The states' affirmative responses prompted a required comment period, during which Texas Defender Services and other capital defense organizations produced a 247-page comment — bolstered by more than 100 appendixes — criticizing Texas' application, calling it "little more than a whitewash of the state's persistent historic failures" that includes "no evidence at all."

The application itself doesn't explain why the state wants to opt in.

Kent Scheidegger, death penalty supporter and legal director of the Criminal Justice Legal Foundation touted opt-in as a way to speed up the process.

"We talk about due process of law — I call this overdue process of law," he said. "The victims' families just get frustrated beyond belief with all this reexamination when in most cases the guy is guilty beyond any doubt. The fact that a federal court overturns the judgment doesn't mean that that's a just result."

Houston-based capital defense attorney Patrick McCann stressed that federal courts are where many condemned men —including those wrongfully convicted like Anthony Graves, and those deemed too intellectually disabled to execute, like Bobby Moore — have gotten relief.

"This is a political quest," he said. "It's an appeal to Gov. Abbott's base to make it very proudly explained that we have an express lane to death."

'Worst-case scenario'

If Sessions approves it, opting in would include limitations on how long federal courts have to resolve cases, restrictions on judges' abilities to grant stays of execution, and limits on the claims that prisoners can raise in federal habeas proceedings.

But what's sparking the most concern among defense lawyers is a change that would halve the time attorneys have to file the first part of their federal appeal.

If Texas opts in, attorneys would have six months instead of a year to interview witnesses, hire investigators and familiarize themselves with sometimes a decade or more of case files to sift out any possible past lawyering mistakes, suspicion of withheld evidence or proof of actual innocence stuffed away in boxes and boxes of materials.

"Doing all that in one year is already extraordinarily difficult, and any further limitations would only exacerbate the existing problem," said Emily Olson-Gault, director of the Death Penalty Representation Project at the American Bar Association.

"We know that errors are made in capital cases," she added. "The more that the allotted time to prepare is limited, the greater the risk that serious constitutional errors will stand uncorrected."

And if claims aren't raised in the first filing, they can't always be raised later.

"They're valid concerns but you gotta consider the other side of the coin," said Scheidegger "The state and the victims have an interest in seeing these sentences carried out and at present it is taking far too long."

Death penalty lawyer Kenneth McGuire — who is among those suing in federal court in Washington, D.C., to challenge the certification process — called the shorter time frame "completely impractical" and said it would "only guarantee a miscarriage of justice." Attorney James Rytting concurred, adding that sometimes it takes "several months" for the courts to appoint federal habeas lawyers.

And, because Texas has requested certification dating back to 1995, there's some question as to whether it would retroactively be applied to cases now entering federal appeals.

"That's a worst-case scenario," McCann said.

'Bigger problems'

Opting in wouldn't just affect defense attorneys and their clients.

Defense attorney Margaret Schmucker, who previously worked for the state attorney general under both Abbott and John Cornyn before him, highlighted the problems it could cause for the state attorneys, who would likely have to handle appeals at a quicker clip.

"On any given day, any one of the capital division attorneys would have a couple dozen cases on their docket," she said. "And it's not going to be any easier on them. So unless the money and the staff comes to deal with the expedited processes they're going to have bigger problems."

It also could have an impact on which cases are taken up by the nation's highest court, which issued two groundbreaking decisions stemming from Houston-area cases last year.

"The Supreme Court can only hear what's brought to it and if those cases never get there because they get shut out or shut down, the Supreme Court is gonna be a lot less busy," McCann said.

"Bobby Moore would be dead under this standard of time limits. Anthony Graves would be dead. Pretty much everybody who's been released or commuted on death row would have already been executed so not only would we have done wrong we wouldn't even know we had."

As of now, it's not clear when a decision from Washington might come.