In the Patriot Act renewal bill, Congress took the decision as to whether states have adopted mechanisms for state habeas counsel appointment, so as to qualify for the federal habeas fast track, away from the habeas courts (with their painfully obvious conflict of interest) and gave it to the US AG and the DC Circuit. DoJ then dragged its feet for 15 months before promulgating the proposed regulations on how to apply. Given that everyone knew this was coming for over a year, the 60 days allowed for comment was more than generous. But the capital habeas crowd did what they do best -- call for more delay -- and DoJ caved. The comment period is extended another 45 days.
The announcement is here, 72 Fed. Reg. 44816 (Aug. 9, 2007). I've also copied the pertinent text into this post after the jump. The excuse of malfunction in the system for viewing other people's comments is really weak. Commenters on regs have no right to see others' comments first. After all, nobody sees in advance comments submitted on the last day, as many are.
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On June 6, 2007, the Department of Justice (Department) published a notice of proposed rulemaking in the Federal Register, 72 FR 31217, in order to promulgate regulations pursuant to Public Law 109-177, the USA PATRIOT Improvement and Reauthorization Act of 2005, (``the Act''). Section 507 of the Act amends chapter 154 of title 28 of the United States Code. Chapter 154 provides expedited Federal habeas corpus review procedures in capital cases for States that establish a mechanism for providing counsel to indigent capital defendants in state postconviction proceedings that satisfies certain statutory requirements. The Act amended sections 2261(b) and 2265 of title 28 to assign responsibility to the Attorney General of the United States for certification of a State's satisfaction of the requirements for the application of chapter 154 , subject to review by the Court of Appeals for the District of Columbia Circuit. Section 2265(a) as amended makes clear that the only requirements that the Attorney General may impose for a state to receive certification are those expressly stated in chapter 154. See 28 U.S.C. 2265(a)(3) (``[t]here are no requirements for certification or for application of this chapter other than those expressly stated in this chapter''). As a result, the rule in large measure simply recounts and provides illustration relating to the express statutory requirements, addresses some limited interpretive questions, and outlines a procedure for States' requests for certification.
The Department consulted with a number of groups in developing this proposed rule to carry out the statutory directive, including representatives of state officials and both prosecution and defense interests concerned with capital case litigation. Notwithstanding the limited nature of the matters to be determined in the rule, the extensive consultation concerning these matters with interested officials and organizations, and the normal 60-day period for comment provided in the rule as originally published, a number of organizations involved in capital defense or advocacy activities have requested additional time for comment. While the justification for the requested extensions is at best marginal in light of the considerations noted above, and extending the time for comment will further delay realization of the legislative objectives reflected in chapter 154 of title 28, the Department nevertheless wishes to ensure ample opportunity for provision of input by interested groups and members of the public.
Further, some technical problems arose because of the recent transition of the Department to using the Regulations.gov Web site (http://www.regulations.gov) to post public comments on rulemakings. These problems with using Regulations.gov have now been resolved and public comments received by the Department are posted for public viewing in a timely manner. However, there was a short period when public comments received by the Department and posted by Department personnel to the Regulations.gov site were not viewable by the public.
Accordingly, the Department is reopening the public comment period and will accept comments for an additional 45 days after publication of this notice of proposed rulemaking.
Dated: August 1, 2007.
Cybele Daley,
Deputy Assistant Attorney General, Office of Justice Programs.
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