Allowing states to take shortcuts in their quests to put convicts to death: that is the essence of a deal Congress struck with the states in the mid-1990s, editorializes the Washington Post. States that guaranteed and paid for a robust system of legal representation for poor death-row inmates could fast-track federal appeals of state capital-punishment convictions. To qualify, a legal defense program had to be certified as acceptable by the federal courts. After nearly a decade, not a single state qualified.
The few states that applied for the program often had the biggest death-row dockets and the worst indigent defense systems. In 2006, Congress changed the law to give the U.S. attorney general — and not the courts — the authority to certify the programs. These provisions are so lax that choosing lawyers by shoe size and paying them with bubble gum could meet the test. In its waning days, the Bush administration only made matters worse by issuing rules for implementing the law that failed to provide clear and robust guidance or standards. A federal trial court judge put the rules on hold and Attorney General Eric Holder is rightly rethinking them. He should take this opportunity to insist that lawyers who take assignments under the fast-track program have significant experience handling death-row cases. Still, the Post says that “no attorney general — a prosecutor, after all — should have the power to decide whether a state’s legal defense system is up to snuff. Congress should ditch this program.”