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Nothing is Fair About Alabama’s “Fair Justice Act”

Tied for seventh among states with the most exonerated defendants according to a February 2016 report by the National Registry of Exonerations, Alabama’s unsatisfied; it’d like to be much, much higher on this ignominious list.

That’s why the Alabama Senate passed the farcically-titled “Fair Justice Act” on Tuesday night, a bill that epitomizes unfairness. It’s a bill that promises to add more innocent inmates to the state’s already overflowing “hell on earth” prisons and to-be-built mega-prisons. These wrongly convicted men and women will be warehoused in subhuman conditions for overly long periods of incarceration. And, unless the stain of capital punishment is soon cleansed by the United States Supreme Court and ruled unconstitutional, some will inevitably perish in torturous fashion by lethal injection – or a newly proposed abomination, gassing with nitrogen.

While nothing is fair about the Fair Justice Act, by far the worst provision requires death-sentenced defendants in Alabama to scramble to challenge their capital convictions based on postconviction claims such as ineffective assistance of counsel and juror misconduct – claims brought and proven with a disturbing regularity in Alabama – within 180 days. Current law mandates these claims be brought within one year. Historically, this period of time death penalty lawyers need to effectively investigate, research, and litigate their clients’ claims for postconviction relief was already shaved from two years to just one year in 2002. With the Fair Justice Act, Alabama is poised to halve this critically needed time yet again.

Additionally, like California’s new death penalty law now being appealed and stagnating in the courts, the Fair Justice Act violates basic separation of powers principles because it sets deadlines for judges to rule on death penalty appeals. The law just doesn’t work like that.

You don’t have to be a constitutional law whiz to know that one branch of government doesn’t have the constitutional authority to tell another branch how to do its job. As Supreme Court Chief Justice John Marshall famously declared in Marbury v. Madison in 1803: “It is emphatically the province and duty of the judicial department to say what the law is.” By constitutional design, judges will always get to decide just how much time is needed to fairly and properly resolve a criminal appeal – not politically motivated legislators, family members of crime victims, or prosecutors.

Being that they’re the most serious and complicated criminal cases our legal system has, it should come as no surprise that death penalty appeals take a long time to resolve. It can take a whole year or more before the trial transcript of a capital case (sometimes spanning tens of thousands of pages, or more) is even ready for an appellate lawyer to review. Moreover, in postconviction or “habeas” cases, defense lawyers have a constitutional and ethical obligation (just as the “direct appeal” lawyers do) to not only scrutinize all the transcripts and trial exhibits looking for non-frivolous issues to appeal, but also, they are obligated to go outside of the record too; they must, often years after the crime, conduct a brand new investigation into the charges, the client’s background, and the trial and appellate proceedings. This requires extensive meetings with the condemned client, consulting (hiring, and collaborating with) specialized experts, tracking down old witnesses and jurors – and many other things that take time, lots of time. And, all this is even before an appeal or postconviction motion is filed, the state responds, and any subsequent proceedings and/or oral arguments are held.

Together with a team of committed professionals, I prepared and filed a postconviction petition for a death-sentenced client in Alabama that was granted; the client’s conviction and death sentence were overturned by the trial court. During the slightly less than one year that we had to work on the petition, myself and many others worked on the case night and day, on weekends, and yes, on holidays too.

I remember one of the first things I did to prepare to work on the case was to read a manual Alabama’s renown Equal Justice Initiative (EJI) publishes to assist capital defense attorneys litigating in Alabama. To this day I can remember the tremors of fear coursing through my body when I read that the main thing standing between a condemned client and execution was the amount of effort expended by their lawyer. It was a crippling, paralyzing fear that was hard to overcome.

Critically, however, I had almost a full year to buck up, work like hell, and get it done. Not 180 days. That would have been impossible.

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Stephen Cooper is a former D.C. public defender who worked as an assistant federal public defender in Alabama between 2012 and 2015. He has contributed to numerous magazines and newspapers in the United States and overseas. He writes full-time and lives in Woodland Hills, California.

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