Death Sentences Are Down. Jeff Sessions Has a Plan to Change That.

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We know that America has executed innocent men. Carlos DeLuna was innocent of murder when he was put to death by lethal injection in 1989. Cameron Todd Willingham was innocent of murder when he was given a lethal-drug cocktail in 2004. Both men were executed in the Huntsville Unit of the state penitentiary in Texas, one of the most prolific death penalty states in our country, because they both were unfairly prosecuted, convicted and sentenced – and because no appellate judge mustered up the courage and integrity to right the monstrous wrongs their cases represented.

Now, Attorney General Jeff Sessions wants to make capital procedures in states like Texas both easier and faster for prosecutors and the families of some victims. At the moment, Sessions is coordinating with state officials in Austin to make it even less likely that wrongful conviction cases will be identified and remedied before innocent men are put to death. Sessions, the former senator of another death penalty state with a rich history of wrongful capital convictions (Alabama), has quietly encouraged officials in Texas and Arizona to move forward with their requests to "opt-in" to the provisions of a Clinton-era law that expedites capital appeals.

The federal law in play is the dubious Antiterrorism and Effective Death Penalty Act, or AEDPA, passed by a bipartisan Congress in 1996 after the Oklahoma City bombing. The act was designed to be many different things to many different constituencies, expanding the reach of federal terrorism law. It sharply restricted the rights of prisoners to challenge their convictions, in capital cases and beyond, to the delight of prosecutors and the families of violent crime victims. It was designed, lawmakers said at the time, to shut down "frivolous" death penalty appeals, leaving to federal judges to define what "frivolous" means in any given case.

At the time of its passing, the law included an "opt-in" provision that allowed states to ask federal judges for permission to further restrict the appellate rights of capital defendants. States looking to further sacrifice accuracy for expediency in capital cases could "opt-in" if they could "certify" to the satisfaction of those judges that they had adequate procedures in place to ensure that indigent defendants would receive competent lawyers who were adequately paid and could proficiently investigate the circumstances of a particular case. Many states tried to sign up. All failed to pass the statutory test.

A decade later, with no successful "opt-ins," Congress again intervened to put its thumb on the scales of justice, once again in the context of anti-terrorism legislation. During a Bush-era reauthorization of the USA Patriot Act, federal lawmakers took away from the judiciary the power to decide "opt-ins" and gave that power to the U.S. attorney general and the Justice Department. The idea was simple: the nation’s chief law enforcement official, likely a former prosecutor, was far more likely to sign off on new restrictions for capital defendants than were the nation’s judges.

After nearly 10 years of legal wrangling that spanned three administrations and at least three attorneys general, Texas and Arizona emerged with still-viable (if outdated) applications requesting certification for the "opt-in" provision. Last year, the Trump administration moved on it. Sessions, who believes we should execute drug dealers, invited officials in those two states to update their applications. The message couldn’t be clearer: help us help you expedite these cases.

https://www.rollingstone.com/politics/features/jeff-sessions-death-penalty-texas-arizona-w518720?utm_source=rsnewsletter&utm_medium=email&utm_content=daily&utm_campaign=040518_17