Killing the Death Penalty

Capital punishment loses its deterrent value as it is delayed long after murder and conviction at trial. The penalty is nullified entirely as death-row inmates increasingly die a natural death, while in custody litigating their appeals.

By Andrew Thomas | March 21, 2013

The death penalty is itself experiencing a slow death. This demise is the product of the same alliance of criminal-defense lawyers and activist judges who have done so much in recent decades to undermine public safety. In few arenas is the success of their joint handiwork clearer that in their effort to slow down executions with endless appeals, to the point that capital punishment is becoming all but meaningless.

Americans have become accustomed to not months, not years, but decades of appeals of capital convictions. In Arizona, the average length of time from murder conviction to execution is 19 years. This is rather typical of jurisdictions in the United States today.

The effect of such delays is that the death penalty has become an empty threat to would-be murderers. Capital punishment loses its deterrent value as it is delayed long after murder and conviction at trial. The penalty is nullified entirely as death-row inmates increasingly die a natural death while in custody litigating their appeals.

It was not supposed to be this way. Such delays were unheard of until a few decades ago, when federal courts began to manufacture new appellate rights for condemned inmates. Inmates were given new avenues to appeal their sentences using federal rights of review. On average this more than doubled the total time for their appeals and delaying tactics.

To deal with this, Congress adopted reforms in 1996. The Antiterrorism and Effective Death Penalty Act (AEDPA) was designed to restrict and streamline habeas-corpus petitions, lawsuits which inmates file in federal court to seek review of their convictions in state court. (Disclaimer: I advised Senate staffers in the drafting of the law.)

The AEDPA was intended to prevent habeas cases from dragging out in federal court for a decade or more. The law required habeas suits to be filed within 180 days after either final affirmation of the petitioner’s conviction by a state court or expiration of the time for seeking such a review. The act mandated that federal judges decide within 180 days on all capital habeas petitions. Federal appeals courts, in turn, were to rule within 120 days after the final brief was filed.

There was a catch, however—and that catch has proved an insurmountable barrier to reform. In order for a state to “opt in” to the delay-free system, the state must be certified by the federal courts as having met certain requirements. The state must set up a “mechanism for the appointment, compensation, and payment of reasonable litigation expenses of competent counsel in state post-conviction proceedings brought by indigent prisoners.”

In other words, the same federal courts that had initiated these multiple appeals and delays were given the power to determine, without congressional oversight, whether states had achieved the ability to bypass the process they had created.

One after another, federal courts precluded the states that petitioned them from qualifying under the AEDPA. Today, 17 years after passage of the AEDPA, only Arizona has qualified for the benefits of the law. And that too, it turns out, was for naught. The federal courts have identified yet another hurdle, concluding that the state has not provided sufficient “quality control” over defense counsel to ensure that capital defendants receive competent representation in their cases and appeals. Arizona created brand-new offices, underwritten with millions of tax dollars, to provide trained defense attorneys and provide for the needs of these inmates. Yet to date, Arizona is stymied just like the other 49 states.

Nearly two decades after passage of the AEDPA, some lessons can be drawn. It is clear that Congress simply gave too much discretion to the same courts that invented the problem. Allowing the federal courts to determine whether a state has provided “competent” counsel has proved self-defeating. This outcome could have been avoided. Absent from the AEDPA was proper congressional deference to the Tenth Amendment, which reserves all power not given to the federal government to the states and the people. The states, not the federal courts, could have made this determination.

It is time to return to the states their powers under the Tenth Amendment, and acknowledge their own proper authority over their criminal-justice systems. Congress can make amends by repealing the AEDPA’s broad federal mandates and allow states simply to benefit from the streamlined appeals process. This will allow death-row prisoners to appeal their sentences through the federal system, but without the delays that have become an obvious attempt to “game” the system. Anything less will mean the death penalty continues to be reserved for elderly inmates who have enjoyed decades sitting on death row, smirking at a system that allows such travesties.

Andrew Thomas is a graduate of the University of Missouri and Harvard Law School. Twice elected as Maricopa County Attorney, the district attorney for greater Phoenix, Arizona, Thomas served a county of four million residents and ran one of the largest prosecutor’s offices in the nation. He established a national reputation for fighting violent crime, identity theft, drug abuse and illegal immigration. He is the author of four books, including The People v. Harvard Law: How America’s Oldest Law School Turned Its Back on Free Speech. Mr. Thomas is also a contributor to

SFPPR News & Analysis.