In 1996, Congress enacted the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) which expedited habeas corpus appeals by state death penalty inmates. AEDPA was designed to eliminate the delays which had thwarted states from carrying out speedy executions since the reinstatement of the death penalty in 1976. Texas took advantage of the new speedy habeas corpus review process by executing more inmates than any other state in the nation—248 inmates from 1997 thru 2005; an average of 28 inmates per year compared to just 3 executions carried out by the state in 1996.


With the USA PATRIOT Improvement and Reauthorization Act of 2005 (“Patriot Improvement Act”), Congress in March 2006 amended AEDPA by creating a certification review process through the U.S. Attorney General. The Patriot Improvement Act required states to establish “a mechanism for the appointment, compensation, and payment of reasonable litigation expenses of competent counsel in state post-conviction proceedings brought by indigent [capital] prisoners” if they want to benefit from AEDPA’s expedited habeas corpus review process. This amendment imposes a specific duty on states to provide the Attorney General with “standards of competency for the appointment of counsel in [such] proceedings.”


Expediting Habeas Review, Speeding up Executions


In August 2007, former U.S. Attorney General Alberto Gonzales nearly finalized most of the requirements the states would have to meet concerning providing competent counsel in their post-conviction processes in order to benefit from the expedited habeas review process of AEDPA. However, it would take another six years before U.S. Attorney General Eric Holder published the Final Regulations (2013) pursuant to 28 U.S.C. §§ 2261(b) and 2265.


In the wake of the Patriot Improvement Act amendment, the rate of executions in Texas precipitously declined between 2006 and 2017—a total of 189 executions were carried out during that period at a rate of 16 per year; 114 of those executions were carried out during President Obama’s eight years in office at an average of 14 per year.


The Texas Tribune reported on April 6, 2018 that in 2013 the Texas Attorney General (and now Governor) Greg Abbott immediately applied for certification that would limit appeals and fast track executions under the Department of Justice’s 2013 Final Regulations. The Tribune reported that President Obama “tabled” the Abbott certification request. Through the last four years of the Obama presidency, Texas managed to send just 45 inmates to their death, an average of 11 per year—a number considerably less than the 28 inmates it had put to death each year under AEDPA before the Patriot Improvement Act amendment.


The Houston Chronicle reported on April 2, 2018 that Texas’s current attorney general, Ken Paxton, has made a request to U.S. Attorney General Jeff Sessions to “opt-in” to the Justice Department’s Final Regulations certification process. Paxton’s spokesperson, Kayleigh Lovvorn, was quoted by the Chronicle as saying:


“Opting-in would serve several purposes for Texans, including sparing crime victims years of unnecessary and stressful delays, ensuring that our state court judgments are respected by federal judges as cases progress, and reducing the excessive costs of lengthy federal court proceedings.”


Clearly, speed to death is more important than justice to the Attorney General’s Office.


Texas Wants to Speed up Death Penalty Treadmill


Kathryn Case, the former executive director of the Texas Defender Services, sees the issue in a more realistic light.


“Opt-in would speed up the death penalty treadmill exponentially,” she told the Chronicle.


Attorney General Paxton, who has an obvious political dog in the fight, wants to “fast-track” death penalty cases through the federal habeas corpus review process to curtail the discovery of more innocent inmates sitting on the state’s death row. As Anthony Graves, an innocent man who spent more than a decade on Texas’s death row before his exoneration, told the Tribune:


“I had to get out of the state of Texas and into the federal court system to get help. If it was up to the state itself, I would have been executed.”


Intentional Misconduct Adds to Wrongful Convictions, Executions


Houston attorney Casey Kaplan agrees. After his legal efforts freed Alfred Dwayne Brown from death row, he has profound concerns about the fast-track process that he expressed to the Chronicle:


“In any environment like Texas where you know the state gets it wrong – and not just accidentally, but intentionally – why in the world would you ever take steps to speed up the process to execute a potentially innocent person. Until somebody can answer that question, they should be taking steps to slow [the process] down.”


We join with attorneys like Case and Kapan, former federal judges, legal groups, and exonorees like Graves in their opposition to the Paxton-led effort to fast-track death penalty cases through the federal habeas corpus review process.


Texas has had 13 of its death row inmate exonerated since 1987—and has probably executed as many as eight other innocent inmates, more than all the other death penalty states combined.


There is no fast-track to justice. Justice is a slow, often cumbersome, process, but it is better that a 100 executions be delayed than one execution of an innocent person be carried out.