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DOJ Issues Final, Controversial Regulations on Fast-Track Review of Death Penalty Cases
The National Law Journal
December 15, 2008
The U.S. Department of Justice has issued final, controversial regulations for certifying states that qualify for using fast-track federal court review of their death penalty cases.
The final regulations differ little in substance from the regulations proposed in June 2007, which generated 32,000 individual public comments, according to the department.
"The proposed regulations of June 2007 were basically sound and only minor tweaks were needed," said Kent Scheidegger of the Criminal Justice Legal Foundation in Sacramento, Calif., who is a strong proponent of both the fast-track procedures and states' certification.
But veteran capital defense litigator George Kendall, partner in the New York office of Holland & Knight, said it was a "dark day" for the Justice Department.
"These regulations confirm the department will not play the role of honest broker between state claims that their plans will assure competent representation in these demanding case and prisoners' assertions that the plans cannot and will not provide for such representation," he said.
The fast-track procedures cut to six months, instead of a year, the time that death row inmates have to file their habeas appeals once their cases are final in state courts. They also impose strict time limits on federal courts for deciding habeas petitions: 450 days for district courts and 120 days for appellate courts.
Those procedural benefits are available to states that establish a mechanism for providing counsel to indigent capital defendants in state post-conviction proceedings that satisfies certain statutory requirements.
The department's regulations are intended to carry out the mandate of Congress in the amended Patriot Act of 2005 to take away certification decisions from federal appellate courts and to transfer those decisions to the attorney general, with de novo review by the U.S. Court of Appeals for the D.C. Circuit. Congress acted at the behest of some lawmakers, particularly Sen. Jon Kyle, R-Ariz., who were angry that the appellate courts had not found any states qualified for the fast-track federal habeas procedures.
In commentary on the final regulations, the department said many of the public comments submitted on the proposed regulations misinterpreted the role of the attorney general in the certification process.
For example, some commenters, it said, urged the regulations be revised to specify what standards of competency of counsel and compensation are required of state post-conviction systems in order to get certification.
The Judicial Conference of the United States, in its comments, had urged the department to elaborate on or supplement the statutory requirements, to make clear what states must do for certification and to ensure that capital defendants receive adequate representation in state post-conviction proceedings.
But the department said, "Responsibility to set competency standards for post-conviction capital counsel is assigned to the states that seek certification. The Attorney General has no authority to overrule Congress and prescribe standards that others unsuccessfully urged Congress to impose."
The final regulations state that once a state has been certified by the attorney general, that certification is final and will not be reopened. "Subsequent changes in a state's mechanism for providing legal representation to indigent prisoners in state post-conviction proceedings in capital cases do not affect the validity of a prior certification."
"The entire burden falls on these indigent prisoners to attack these certifications," said Kendall. "There was a huge outpouring against the initial regulations. It's very disturbing in the wake of some many people saying this was a sham and ruse, they issue a sham and a ruse."
But Scheidegger, credited by Kyle with the idea behind the Patriot Act amendment, said, "Most of the comments that were made were, in reality, disagreements with the statute itself."
