Marcia Coyle reports in NLJ that the Department of Justice plans to finalize, before the end of the current administration, the regulations for approving states for the long-delayed fast-track for capital habeas cases under the Antiterrorism and Effective Death Penalty Act of 1996. In the Patriot Act reauthorization bill, Congress took the authority to decide whether a state qualified away from the federal habeas court and gave it to DoJ with review by the DC Circuit. The conflict of interest for a court to decide whether tight time limits would be imposed on itself had resulted in that vital reform gathering dust. Why DoJ has let the simple step of implementing regulations gather dust this long is unexplained.

Although the regulations will be final in the current administration, the result of the foot-dragging is that the applications will be processed by the Obama Administration. Fortunately, review in the DC Circuit will be de novo. The other side insisted on that when the bill was passed.