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AG Involvement in Capital Appeals:

The Los Angeles Times reports today that the Justice Department is preparing to issue regulations that will authorize the Attorney General to determine whether capital defendants received adequate legal representation at trial in state court proceedings.

he Justice Department is putting the final touches on regulations that could give Atty. Gen. Alberto R. Gonzales important new sway over death penalty cases in California and other states, including the power to shorten the time that death row inmates have to appeal convictions to federal courts.

The rules implement a little-noticed provision in last year's reauthorization of the Patriot Act that gives the attorney general the power to decide whether individual states are providing adequate counsel for defendants in death penalty cases. The authority has been held by federal judges.

Under the rules now being prepared, if a state requested it and Gonzales agreed, prosecutors could use "fast track" procedures that could shave years off the time that a death row inmate has to appeal to the federal courts after conviction in a state court. . . .

The idea behind the new rules has been years in the making. The federal Anti-Terrorism and Effective Death Penalty Act of 1996 set up a system in which states could take advantage of faster procedures so long as they could prove they had made sure defendants had had adequate counsel in state courts. California and several other states applied to the program starting in the late 1990s. But federal courts ruled that they were not doing enough to provide defendants with competent attorneys.

Frustrated with the pace of changes — and believing that judges were part of the problem — death penalty advocates Rep. Dan Lungren (R-Gold River) and Sen. Jon Kyl (R-Ariz.) led a successful effort to include language in the Patriot Act last year that let the attorney general, rather than judges, decide whether states were ensuring death row inmates had adequate legal representation.

Under the law, the attorney general's decision could be challenged before the federal appeals court in Washington.

Justice Department officials are seeking public comment on the rules until Sept. 23, after which they will be finalized "as quickly as circumstances allow," said department spokesman Erik Ablin.

I am no expert on AEDPA or capital appeals, but this all seems somewhat bizarre to me. I recognize that the purpose here is to accelerate death penalty appeals — which can drag on for years and years — but it still seems like an odd (and potentially troubling) way to do it. Are there any VC readers that care to shed light on this reform and the proposed regulations?

UPDATE: Reader Mark Arnold, a civil attorney who received a court appointment to handle a habeas case, writes:

You'll find the statutes in chapter 154 of 28 U.S.C., §§ 2261 thru 2266. The Sixth Amendment does not require counsel in state habeas cases and, for many years, the quality of such representation was extremely uneven in many states. The idea behind chapter 154 was to give the states an incentive to provide better quality state habeas representation, by establishing strict time limits for federal habeas review for states that met the standard. The state has every incentive, of course, to do the minimum necessary to qualify for fast track. The new statutory provisions take the responsibility for determining compliance from the courts and vest it in the AG.

There's no doubt that AEDPA addressed a legitimate concern. Granting the legitimacy of capital punishment, which is settled law, the states have a perfectly legitimate interest in carrying out their sentences within a reasonable time. Decades-long delays in executions are inconsistent with that interest and horribly unfair to the victim's family. AEDPA just found the wrong solution. The right answer is to skip the state habeas.

The way it's done today, the capital prisoner has a right of direct appeal from his trial. If he wants to raise collateral issues, such as ineffective assistance of counsel, he has to file a state habeas claim in state trial court. He gets discovery, a hearing and an order from which he can appeal. Then and only then can he go to federal court where he gets a third level of review, though usually only on the record made in state court. If he gets a certificate of appealability, he can appeal that too.

This triple review is wasteful and unnecessary and it creates enormous opportunities for waiver. If a capital defendant has an incompetent trial counsel and a good habeas counsel, he likely gets a new sentencing hearing. If he has an incompetent habeas lawyer, he's a dead man.

Also, as noted by a commenter, here are the proposed rules at issue.

Related Posts (on one page):

  1. NYT on Speedy (Executions) Gonzales:
  2. AG Involvement in Capital Appeals:
Steve:
There sure seem to be a lot of "little-noticed provisions" in the Patriot Act!
8.14.2007 3:19pm
OrinKerr:
Steve,

That's because it's not in the Patriot Act. When the sunset provisions of the Patriot Act effectively required Congress to pass later legislation, everyone else piled on their pet projects into the Patriot reauthorization bill.

Does anyone have a link to the proposed DOJ rule? I'm particularly curious about how a rule can force judges to decide cases within a particular window of time; seems kinda fishy.
8.14.2007 3:29pm
Steve:
I don't understand the distinction, which strikes me as rather pedantic. The Patriot Act reauthorization, like the original Patriot Act in 2001, was a grab bag in which everybody got to include something from their wish list. A lot of these items slipped through the cracks without much comment, including the one addressed in this post. None of what I've just said is particularly subject to dispute, is it?
8.14.2007 3:51pm
Hewart:
"seems kinda fishy"

The Justice Department sure does smell that way, lately.
8.14.2007 3:51pm
Daniel San:
Long ago, around 1985, I think, Congress limited the number of habeas corpus appeals a death penalty defendant could file. Essentially, they are limited to one, with exceptions for matters that could not have been raised in the first. Most issues raised on habeas corpus are issues that could have been, or were, addressed at the State level. So stream-lined procedures make sense if State courts and State defense attorneys can be trusted.

So we get stream-lined procedures if certain findings are made that State defenders can be trusted. The is not Habeas Corpus, as in The Great Writ; it is habeas corpus, a statutory creation, which can be amended by statute. It wouldn't seem that "fishy" if the certification were being made by someone we trust more than Gonzales.
8.14.2007 4:12pm
Nobody (mail):
1. The determination (whether a particular defendant received adequate representation at trial) is a legal determination concerning the defendant's federally protected constitutional rights (as embodied in the 6th amendment).

2. It is the province and duty of the judicial branch to say what the law is.

3. A state court lacks the authority to have final say on determining whether a violation of FEDERAL constitutional rights have occurred.

4. Similarly, the executive branch (in the person of the attorney general, or of the president, for that matter) lacks the right to a final say on "what the law is."

5. An attempt (such as this seems to be) to deny a defendant federal court review of his claim that his federal constitutional rights have been violated is itself a violation of his federal constitutional rights under the first (petition the government...) and fifth (due process of law) amendments.

Did I get something wrong there? Am I missing something?
8.14.2007 4:54pm
Thorley Winston (mail) (www):
The Patriot Act reauthorization, like the original Patriot Act in 2001, was a grab bag in which everybody got to include something from their wish list.


Wait a minute, I thought the narrative was that the 2001 Patriot Act was “rammed through” a terrified Congress by the administration without anyone having a chance to amend it, much less add anything to it. Which is it?

I don't understand the distinction, which strikes me as rather pedantic.


Well it does make a difference because a lot of the criticism of the process by which the Patriot Act was passed in 2001 was that there was a rush right after 9/11 and Congress didn’t take the time to look at all of the items that were included and they pretty much just signed on to whatever the administration asked for. The sunset provision was supposed to enable Congress to reexamine everything with relatively cooler heads and “fix” things as needed, presumably with the hope by many that this would lead to more checks on the power of the executive branch. Having Congress decide later (without the political climate that supposedly immediately preceded 9/11) when they reconsidered the Patriot Act that they actually wanted to expand the executive’s powers and reduce the role of federal courts is a pretty big deal IMO.
8.14.2007 4:58pm
Steve:
Wait a minute, I thought the narrative was that the 2001 Patriot Act was “rammed through” a terrified Congress by the administration without anyone having a chance to amend it, much less add anything to it. Which is it?

When not one but two people decide to get pedantic with me within the span of a two comments, it's a sign that I may just be doing a poor job of communicating.

What I meant was that individuals and departments from all over the Executive Branch got to use the Patriot Act as a sort of wish list. I certainly didn't mean that Congress did an extensive job of marking it up and proposing amendments. It was a grab bag for the administration, not for Congress. Is this version of events actually in dispute?
8.14.2007 5:17pm
RL:
Based on this summary and the home states of its sponsors, I'm guessing that the real purpose of the law is to take ineffective assistance claims out of the hands of the 9th Circuit, thereby ensuring more executions.
8.14.2007 5:51pm
axios023:
When AEDPA was passed in 1996, it included a shortened timetable and an even-more-deferential standard of review that would apply in capital habeas cases arising from states that "establish[] by statute, rule of court of last resort, or by another agency authorized by State law, a mechanism for the appointment, compensation, and payment of reasonable litigation expenses of competent counsel in State post-conviction proceedings brought by indigent" death-row inmates. 28 U.S.C. § 2261(b) (2003). If a state established such a mechanism, the limitations period on § 2254 habeas petitions filed by such prisoners was shortened from one year to 180 days; district courts were required to decide such cases within a maximum of 330 days; and courts of appeals were required to dispose of such cases within 120 days of the reply brief being filed. 28 U.S.C. §§ 2263, 2266. No state had ever been permitted to enforce these procedures, because no federal court of appeals had ever found any state to have (1) created such a mechanism and (2) correctly implemented it with respect to any death-row inmate. See Spears v. Stewart, 283 F.3d 992 (9th Cir.), cert. denied, 537 U.S. 995 (2002).

The legislators mentioned in the LA Times article, with the support of the Attorneys General of both Arizona and California, proposed a bill called the Streamlined Procedures Act in the 108th Congress (or is it the 109th? -- I mean the one before the 2006 election). The SPA would have included even tighter constriction of the standard of review in capital habeas cases, along with the provision you noted in this post: transferring the power to certify that a state had established a qualifying PCR mechanism from the federal courts of appeals to the Attorney General of the United States. SPA failed, but the AG transfer provision survived. The new provision, now codified at 28 U.S.C. § 2265 (2007), also provides for the D.C. Circuit as the exclusive forum for judicial review of the AG's determinations.
8.14.2007 6:02pm
Ethan (mail):
axios023 correctly recounts the policy background, legislative history and court decisions on this issue. It should be emphasized, as s/he states, that the AG certification is with regards to the adequacy of State-provided counsel in STATE POST-conviction proceedings, where the right to counsel is (arguably) only statutory. The proposed DoJ regs in the June 6 F.R. at Page 31217-31220 emphasize this aspect. The press seems to be picking up on the issue now as the DoJ just (p44816 of Aug. 9 F.R.) extended the comment window, in light of loud protestations from relevant communities and awkwardly/suspiciously-timed failure of the online comment systems.
8.14.2007 6:47pm
OrinKerr:
Steve writes:
I don't understand the distinction, which strikes me as rather pedantic. The Patriot Act reauthorization, like the original Patriot Act in 2001, was a grab bag in which everybody got to include something from their wish list. A lot of these items slipped through the cracks without much comment, including the one addressed in this post. None of what I've just said is particularly subject to dispute, is it?
Yes, I disagree with most of it, actually. I think you describe both pieces of legislation incorrectly both in this post and in your 4:17 post.
8.14.2007 9:01pm
Steve:
And to think, Prof. Kerr, you're so consistently harsh on commentors who indicate disagreement without explaining why they disagree. :(
8.15.2007 1:44am
Dave N (mail):
Nobody wrote:

1. The determination (whether a particular defendant received adequate representation at trial) is a legal determination concerning the defendant's federally protected constitutional rights (as embodied in the 6th amendment).

2. It is the province and duty of the judicial branch to say what the law is.

3. A state court lacks the authority to have final say on determining whether a violation of FEDERAL constitutional rights have occurred.

4. Similarly, the executive branch (in the person of the attorney general, or of the president, for that matter) lacks the right to a final say on "what the law is."

5. An attempt (such as this seems to be) to deny a defendant federal court review of his claim that his federal constitutional rights have been violated is itself a violation of his federal constitutional rights under the first (petition the government...) and fifth (due process of law) amendments.

Did I get something wrong there? Am I missing something?

Actually, you are missing quite a bit--and on top of that, your suppositions are incorrect as a matter of law.

While the judicial branch ends up as the final arbiter of what the law is, the executive and legislative branches can interpret the law--and often must--unless there is a controlling court ruling. What I mean by a controlling court ruling is that the Governor or Attorney General of Montana is not bound by a legal ruling from the Fourth Circuit Court of Appeals.

A state court has the capability to interpret the Constitution with the same ability as a federal court--and in fact do so all the time. The Montana Supreme COurt is not bound by the Ninth Circuit's interpretation of the Constitution--even though Montana is in the Ninth Circuit. However, both the Ninth Circuit and the Montana Supreme Court are bound by the United States Supreme Court.

As another commentator noted, the law allows the Attorney General to certify compliance and then have that certification subject to review by the D.C. Circuit Court of Appeals--this is hardly an attempt to dodge judicial review.

Because both state and federal courts are equally competent to interpret the Constitution, federal courts often never get to the merits of constitutional claims in habeas corpus review because the claims are procedurally defaulted.
8.15.2007 3:16am
Dave N (mail):
As to the substance. I vigorously disagree with Mark Arnold's proposal to "skip state habeas." The reason that exhaustion is required under the current habeas corpus statute is not because the federal courts are superior to the state couts, but rather, as a matter of comity and federalism, the state courts should have the first opportunity to correct constitutional error. Taking the state post-conviction process out of the federal habeas mix is misguided if we are, indeed, a federal republic with each state having attributes of sovereignty.

All that said, while I respect the efforts of Arizona and California to "opt in," at this juncture I personally think the Supreme Court's AEDPA habeas jurisprudence has, for the most part, gone the States' way and that many of these decisions will speed up the habeas process for all litigants, including those on death row.
8.15.2007 3:22am
axios023:
"Hardly an attempt to dodge judicial review..."

Considering that before the AG certification provision was enacted, *all* the federal courts of appeals were in on the process, and afterward only one is, seems like a dodge to me. The Ninth Circuit isn't the only one to have grappled with the issue of "opting in" -- the Fourth Circuit decided that South Carolina had not, and I'm sure there are other decisions out there I can't recall off the top of my head. Now that the power to certify states as opting in is an administrative function, are these prior circuit court decisions still valid?
8.15.2007 1:45pm
TruePath (mail) (www):
I'm going to stay out of the broader debate on this one but I have to take issue with the following statement:


Granting the legitimacy of capital punishment, which is settled law, the states have a perfectly legitimate interest in carrying out their sentences within a reasonable time. Decades-long delays in executions are inconsistent with that interest and horribly unfair to the victim's family.


Sure, granting the legitimacy of the death penalty I'll agree the states have a legitimate interest in carrying it our within a reasonable time (though one might say that a 'reasonable' time was whatever it took to establish a certain level of confidence in the process/deciscion). However, this idea that the victim's family is owed the perpetrators death or that delays are unfair to them is just absurd.

Practically it's quite clear that serial killers and other multiple murderers are more likely to get the death penalty than other offenders. This makes sense but how can any victims family be owed the killer's death when their lose would have been the same had he only killed their relative in which case he would have been sentenced to life. In fact the victim's family will suffer the same loss whatever the mitigating factors yet these determine whether they are 'owed' the killer's death. This doesn't make any sense.

If the death penalty is justified it is justified because it serves a *state* interest like deterrence. Now perhaps you might argue that victims families suffer particularly from the uncertainty inherent in a death penalty conviction but if so that is an excellent argument against the death penalty since presumably they would not suffer in such a way if the killer was sentenced to life. Even if true perhaps the death penalty is justified despite the fact that it causes more suffering to the victim's family (even if they think it would be better) but that just clinches my argument that it is the state who has the real interest in carrying out the execution.
8.15.2007 5:18pm
Nobody (mail):
I don't grant the legitimacy of capital punishment, any more than I would have granted the legitimacy of slavery in 1859.
8.15.2007 8:21pm