DOJ to finalize regulations on states' fast-track review of death penalty cases
November 13, 2008
WASHINGTON — The Department of Justice plans to publish final regulations before the end of the administration on how states can get certified to use fast-track federal court review of their death penalty cases.
Although more than a year has passed since the public comment period on proposed regulations has ended, a department spokesman said the department does not plan to leave the issue to the new administration in January.
The department's regulations are intended to carry out the mandate of Congress, which amended the PATRIOT Act two years ago to take away certification decisions from federal appellate courts and to transfer those decisions to the attorney general, with review by the U.S. Circuit Court of Appeals for the District of Columbia. Congress acted at the behest of some lawmakers, particularly Senator Jon Kyle, R-Ariz., who were angry that the appellate courts had yet to find any states qualified for the fast-track federal habeas corpus procedures.
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.
The department's proposed regulations triggered a storm of criticism from defense lawyers, bar groups and others who said the regulations fell woefully short of ensuring that states certified for the fast-track procedures have a system in place — as required by federal law — to provide competent counsel to indigent capital defendants in state post-conviction proceedings.
The department extended an initial 60-day public comment period by 45 days, but final regulations have yet to emerge.
"I can't imagine any legitimate reason for them to have dragged their feet this long," said Kent Scheidegger of the Criminal Justice Legal Foundation, a strong supporter of the fast-track procedures. "They gave an extended comment period, but 90% of the comments were just disagreements with the statute. My suspicion is it's not a priority with them. Ever since 9/11, national security is the priority and everything else is back burner."
But George Kendall, senior counsel in the New York office of Holland & Knight, said the proposed regulations received so much criticism that perhaps the department had to "go back to square one."
The idea for fast-track procedures and state certifications, he added, developed "when we had much more faith in our [justice] system."
If final regulations do emerge, said Kendall, it's unlikely that any state applying for certification will get it before the new administration takes over in January.
And, he added, the states are likely to apply have "big problems" in their indigent defense systems.
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