Gauging Effects of a Death-Penalty Change

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Ten years ago today, Congress passed a law called the Antiterrorism and Effective Death Penalty Act. It was intended to streamline the death-penalty process. Legal scholars disagree over whether it has had the desired effect.


Today is the tenth anniversary of a law that tried to fundamentally change the way the death penalty works in the U.S. NPR's Ari Shapiro has this report on whether that law had the desired effect.

ARI SHAPIRO reporting:

The law is about as unwieldy as its name, the Antiterrorism and Effective Death Penalty Act. The year after it passed, Supreme Court Justice David Souter said, "In a world of silk purses and pig's ears, this act is not a silk purse." The law was intended to streamline the death penalty appeals process, but John Bloom, who directs the Cornell Death Penalty Project, says it did the opposite.

Mr. JOHN BLOOM (Cornell Death Penalty Project): The act was so poorly written and so poorly drafted that in many jurisdictions what it did was actually slow down the cases and probably kept a number of death row inmates alive much longer than they would have.

SHAPIRO: Congress passed the law after people complained that convicts were spending too long on death row, about ten years on average. And a decade after the law was passed, the average time on death row now is --

Mr. RICHARD DIETER (Death Penalty Information Center): Almost 11 years between sentencing and execution.

SHAPIRO: Richard Dieter runs the Death Penalty Information Center.

Mr. DIETER: I mean there are other factors, it was also during these ten years that the growth of innocence cases led the courts to perhaps slow down and examine cases more slowly, but I think if the main goal was speeding it up, that part has not been accomplished.

SHAPIRO: There are other ways to measure the law's impact though. University of Houston Law Professor David Dow has studied how many death penalty cases have had successful appeals in federal court.

Mr. DAVID DOW (University of Houston): From 1976 until 1995 death row inmates got released around two thirds of the time. Now that doesn't mean they got out of prison, but it means that they got a new trial or it means that their death sentence was converted into a life sentence.

SHAPIRO: Since Congress passed the Antiterrorism and Effective Death Penalty Act, that relief rate has dropped dramatically.

Mr. DOW: They've gone from a success rate of 60 or 65 percent to a success rate of ten or 12 percent.

SHAPIRO: The law made it harder for defendants to get a hearing in federal court. Dow says most of the delay in death penalty cases takes place in state court so he believes federal legislation is the wrong tool to speed up the process.

Mr. DOW: The federal government is simply not capable of addressing the root of the delay, which is the state court systems.

SHAPIRO: One of the specters hanging over this debate is the fear that if the system becomes too streamlined, the government could execute an innocent person. In the last 30 years, more than 100 people have been released from death row. It took an average of nine years after their convictions to discover that they were innocent.

Kent Scheidegger is legal director for the Criminal Justice Legal Foundation. He says those innocent people would not necessarily have been executed even with the most streamlined system.

Mr. KENT SCHEIDEGGER (Criminal Justice Legal Foundation): We're not really talking about making the review any less searching on the question of guilt or innocence, we're just talking about requiring the courts to move them along faster.

SHAPIRO: Hofstra law professor Eric Freedman believes the most effective way to streamline the death penalty would be to fund better defense lawyers from day one.

Mr. ERIC FREEDMAN (Hofstra University): Then those people who deserve to be convicted would be and those who deserve to be acquitted or not sentenced to death would be. There would be many fewer grounds for post-conviction attack and the system would be speedier and more just.

SHAPIRO: But the Criminal Justice Legal Foundation's Kent Scheidegger says better lawyers won't keep people from claiming incompetent counsel.

Mr. SCHEIDEGGER: Scott Peterson, he got the lawyer to the stars, I would be shocked if he doesn't claim ineffective assistance of counsel.

SHAPIRO: Scheidegger would like to see the federal death penalty appeals process tightened even further and there's a bill in Congress that could grant his wish, it's called the Streamlined Procedures Act. Parts of it were already made into law when Congress renewed the USA Patriot Act earlier this year.

Ari Shapiro, NPR News, Washington.

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