For a state to execute someone, the process has to move through all of the state courts looking for defects in the conviction. Then it must move to the federal courts for any federal issues.
A federal conviction skips this entire (long) first step. You would think that a federal appeals process would move much more quickly than even a state like Texas could. Why does it not?
Because the same folks who work at delay on state executions work just as hard on federal ones. There isn’t any limit on the number of appeals you can file, therefore you can file just as many in state as you can in state and federal courts.
Regards,
Shodan
Well, it may be a very large number, but it would be finite. Let’s say that number is X. If you had a state case; let’s take Texas and assume that Texas just zips them through with a puny number, call it Y, appeals.
For the federal case, you would “only” need to dismiss X number of appeals before the execution would proceed.
For the Texas case, you would need to dispose of X+Y appeals.
The federal route should always be shorter, but it isn’t…
It sounds like you’re assuming that all appeals fit a set schedule – that once an appeal is filed it will always be heard within X weeks and a decision rendered X weeks after that, and then the next step will take Y weeks, etc.
The court system doesn’t function with that kind of clockwork.
And why not, when they are dealing with peoples life and liberty? Shouldn’t they be hiring more workers then? It’s not as if appeals are a fairly recent concept they have had to adjust to dealing with. Are the delays any less now than they were 10 or 5 years ago?
You can’t make a baby in a month by hiring nine women.
Litigation is complicated. You don’t just put a stamp on your appeal and wait for the judge’s response. There is a tremendous amount of research to do, briefs to write, and arguments to prepare. Once that’s done, the prosecution is going to have to do their own work to get the appeal dismissed. But they can’t do that until after they see your arguments. So more time for them to research a response.
Then the court has to decide whether they even want to hear the appeal. That entails work on their part; they have to find out if this case raises any new questions for which there isn’t any controlling precedent in their jurisdiction. Or maybe there is a controlling precedent but they don’t like it.
If they do decide to hear it, then there are amicus curae briefs which will get filed by everyone with an axe to grind. Finally, it becomes time for actual oral arguments, which generally take very little time. And then the judge or judges must write an opinion, which again involves a lot of research and time to analyze the validity of the litigants’ arguments.
This assumes that reducing the number of state appeals will reduce the total of appeals. Subtracting one from Y just adds one to X. IYSWIM.
Regards,
Shodan
Does an appeal from the state courts to the federal courts start at the lowest level of federal court? What I mean is, are there not low-level federal courts which a case that starts federally would pass through, that a state case would bypass?
In general there’s a three level structure to federal and state courts. If the trial starts in federal court, it will be heard in the District Court – this is a trial court with a jury and whatnot. Appeals go to the US Court of Appeals (aka Circuit Courts). And appeals from there go to the Supreme Court. There are all kinds of exceptions, such as administrative law tribunals that don’t fit within this system, circuit courts deciding to review a decision en banc, and so on.
If you are appealing a criminal matter from the highest court in a state to the federal court system, you must show that there is a federal question, i.e., a matter of federal or constitutional law that you need the judges to rule on. These appeals go directly to the US Supreme Court.
Need help fast?
Actually, what makes you say that Fed DP cases take longer?
Utterly false. There are very stringent limits on the number of “appeals you can file.” Outside of the direct appeals and immediate post-conviction review of a criminal conviction–which are limited to a handful, depending on where the case started–the only additional “appeals” that can be brought are habeas actions. These habeas actions are sharply limited by the Antiterrorism and Effective Death Penalty Act of 1996. In addition to significant substantive limits on the habeas actions that can be brought (the state court conviction wasn’t just unconstitutional but REALLY unconstitutional), the act also sets a one year deadline for all habeas appeals. There are some exceptions to the one-year limit, but they are very rare: they don’t even include evidence of innocence.
Putting aside the falsity of your claim about unlimited appeals, it only makes sense to blame the appeals for the length of the process if they are meritless. But they are not. A huge proportion of them find reversible error–which means not just a technical error but an error so significant that the conviction must be thrown out. In short, the reason the process takes so long is that courts are so bad at following the law.
James S. Liebman, An “Effective Death Penalty”? AEDPA and Error Detection in Capital Cases, 67 Brooklyn L. Rev. 411 (2001).
Could you expedite your own execution? I mean, if you are sentenced to death, could you just accept it and say let’s do it ASAP. How long would that take?
Shot answer, yes. A good example of this is Timmothy McVeigh who after a couple of years of appeals suddenly decided to end the process.
Dec 13th, 2000 - He asked to have his execution carried out within 120 days.
Dec 28th - The judge ruled he could have all his pending appeals canceled. Although he did allow a 15 day cool down period to allow McVeigh to resume his appeals.
Jan 12th - The deadline passed before which he could have resumed his appeals. Around this time the date is set for May 16th.
May 11th - Due to the uncovering of ‘new’ evidence the execution date is postponed till June 11th. Following this there is a flurry of activity as McVeigh tries to back out of his earlier decision. All appeals are denied.
June 11th - He is executed.
So it seems in such a case it would take around 6 months from the decision to accept the verdict until the time it is carried out. This may be shorter than otherwise because McVeigh had already used a couple of years making appeals. In other circumstances it is possible that the defense lawyers would take a year or two trying to get their client declaired incompetent, and void his request for execution.
Wait, what? MY lawyer could stop me from getting my desired execution against my wishes?
I don’t see how. Wouldn’t you just fire him/her/them?
What is the number, exactly?
Regards,
Shodan
I’ll try to break this down a bit more. You have to understand that there are appeals, in one category, and separate hearings to determine whether the conviction violated the Constitution in a separate category. Appeals (aka "direct review) are basically what you think of them as. It is a court reviewing the various legal decisions made in the course of a trial. There is usually at least one appeal that is automatic (e.g. the court doesn’t have discretion to deny it). Generally speaking, you have to raise all of your non-constitutional claims in the direct review stage. Here we’re usually talking about one or two additional proceedings.
The other category is civil proceedings to challenge the constitutionality of the underlying trial (e.g. ineffective assistance of counsel, police misconduct, etc.). The number of such challenges allowed depends on two factors: the number of plausible reversible errors, and the amount that can be researched and filed in the one year period. According to one 2007 study [PDF], in practice this limits habeas review to an average of 28 claims, about a third of which are immediately dismissed. Please keep in mind that each claim does not get a separate proceeding. On average, capital cases include 7 times more claims per petition than non-capital cases.
So the answer to your question is, as usual, it depends. But a rough estimate would be 4-8 proceedings, depending on the number of claims in each petition and whether the discretionary appeals courts grant review (e.g. SCOTUS).
And, again, it makes no sense to blame the number of appeals when such a high percentage of them are successful. You have to blame the police, prosecutors, and lawyers who are making all those errors.
Thanks, but I wouldn’t call that a “stringent” limit on the number of appeals. And this -
would seem to go to a previous point - lack of state courts in which to appeal does not affect the time line - just file more appeals.
Regards,
Shodan
You can quibble with that language all you want. In the context of understanding why it takes so long to give due process in a capital case, challenges to the underlying conviction are by no means “unlimited” as you flatly stated. They are limited in substance and in the time allowed for their filing. Again, they must be filed within one year.
Nor, as I continue to point out and you continue to ignore, does it make sense to blame the appeals for the delays in the process–which was the central point of your first post. That is exactly as logical as blaming the need for trials. After all, we could just shoot the prisoners upon police accusation.
Yes.
See Rees v. Peyton. In 1965 Melvin Rees tried to get, as you put it, a desired execution. His lawyer protested and got him declared incompetent. The case went through multiple series of appeals and was still in a state of appeal 30 years later when Rees died of natural causes in 1995.
My understanding is that competency hearings are pretty standard when a convict waives appeals. The assumption is that most sane people would not willingly choose death.