HB 268 as it passed the House contains two major provisions affecting death penalty cases:
Fast Tracking Appeals
HB 268 changes the rules relating to death penalty appeals would trigger a federal statute that short cuts appeals.
- Opt-in Status cuts the federal filing deadline in half: If this bill becomes law, then far more death-sentenced inmates will be executed without any federal review at all. Here's why: if a federal petition is filed late, federal review is waived. Texas leads the nation in late-filed petitions. This is because the attorneys appointed are often unfamiliar with federal habeas law. On average, state habeas lawyers -- many of whom do not practice in the federal courts -- drop off of the case after state habeas proceedings in 50% of the cases. Texas is the only state in the country to have executed prisoners with no federal habeas review because the petition was filed. Had Texas been an opt-in state, the number of inmates executed with no federal review would have been eight times than the rest of the nation combined.
- Federal Judges will not be able to issue more than one stay of execution: HB268 will have the effect of prohibiting federal courts from staying a death-sentenced inmate's execution unless his lawyers can meet the stringent requirements for filing a successive writ of habeas corpus in federal courts. Federal judges rarely find that petitioners meet this standard.
- Effect on the lawyers for the death-sentenced inmates if process is sped up: Another effect of HB 268 is that counsel for the death-sentenced inmate can be required to litigate some or most of the district court proceedings, all proceedings in the Fifth Circuit and Supreme Court, any clemency proceedings, and any successor proceedings in just a matter of months. This would have a chaotic effect on this litigation.
- Effect on review by federal appellate court: HB268's impact on federal habeas rules would also restrict the time afforded counsel to conduct hearing as well as the time for the court to issue its decision. This unnecessary "speediness" has the effect of rushing claims to resolution both by the lawyers as well as judges who may have wished for more time to make a more reliable determination.
- Effect on the likelihood of wrongful execution: Last year alone, one prisoner was faced execution without counsel -- even though he was a juvenile offender and the Supreme Court had already decided to review the constitutionality of executing juvenile offenders -- because his court-appointed lawyer could not be bothered to file a motion for which he would not be paid.
- Editorial, More Texas Rules, The Washington Post, Feb. 20, 2004, at A.24. In another near-execution last year, court-appointed counsel abandoned her client despite a potential mental retardation issue that had never been investigated. Miriam Rozen, The Price of Life, Texas Lawyer, May 25, 2004, at 1. Significantly, both of the court-appointed lawyers in these cases continue to receive appointments in capital cases, and HB 268 would do nothing to change this reality.
Lowers Trial Attorney Standards
In 2001, Senator Ellis passed SB 7, the Fair Defense Act. The Fair Defense Act created the first state standards for appointment of indigent defense counsel in all criminal cases, including capital cases. HB 268 would significantly weaken those standards and compromise the defense of those facing death row.
- TRIAL -- It allows an attorney with No complete Death Penalty Trial experience at to be appointed as counsel in a Death Penalty TRIAL, where someone's life is on the line.
- APPEAL -- Allows an attorney with No Death Penalty Appeal experience to be appointed to a Death Penalty Appeal
- Trial and Appeal -- Allows attorneys with little experience to be appointed as death penalty counsel by deleting the "significant number of cases" requirement.