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The American Bar Association on Thursday called “seriously flawed” the new rules that give the U.S. Attorney General authority to approve state “fast track” procedures to speed death penalty appeals through the courts. Federal judges previously had authority to determine whether a state met the criteria for competent legal representation and other safeguards before times allotted to capital defendants’ post-conviction appeals could be curtailed. Under the amended USA Patriot Act approved last year that authority transferred to the attorney general. In response to proposed rules regarding the certification process for implementing the changes, the ABA stated that the new rules have no minimum requirements other than a state applying for “fast track” must attest to a process for appointment of competent counsel. “By opting to fail to specify the requirements of the application, the Justice Department has proposed an unworkable mechanism that will result in arbitrary and capricious agency action,” according to an ABA statement. Under the regulations, death row inmates would have six months instead of one year, to file appeals in federal courts and federal judges would have less time to rule. In the case of federal appeals courts the time limit would be 120-days to decide a capital appeal. The ABA complained that the proposals would allow appointment of any attorney, rather than expressly calling for competent capital appellate counsel. The rules ignore statutory requirements that make it clear defendants face speedier review and fail to impose uniform standards for states seeking fast tracking. In addition the ABA said the rules would allow ex parte communications between the attorney general and the state applicant and fail to provide for public scrutiny of state application claims. The Justice Department has extended the public comment period for the proposed regulations until Sept. 24.

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