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AEDPA Fast Track Regs, At Long Last

When Congress passed the Antiterrorism and Effective Death Penalty Act of 1996, the most important of the habeas reforms was thought to be new Chapter 154 of title 28 of the U.S. Code. That chapter implemented, with some changes, recommendations of committee chaired by retired Justice Lewis Powell. In return for providing appointed counsel on state habeas in capital cases (which states have no constitutional obligation to do, see Murray v. Giarratano, 492 U.S. 1 (1989)), the states would get a number of benefits, including most importantly some time constraints on the federal courts in their processing of the federal habeas.

Alas, it was not to be. The very federal courts that were to be constrained by the new law had the power to decide if it applied, and they uniformly decided it did not. The evasion reached Kafkaesque proportions in Spears v. Stewart, 283 F.3d 992 (2002), in which the Ninth Circuit acknowledged that the Arizona appointment mechanism met every requirement in AEDPA but denied the state the benefit of the statute anyway, because in the individual case the state had not met a timeliness requirement in its own law that Congress had not required.

In the USA PATRIOT Improvement and Reauthorization Act of 2005, Congress took the decision on a state's qualification away from the habeas court and gave it to the Attorney General of the United States, with review by the D.C. Circuit. Almost as an afterthought, the statute also provided for DoJ to promulgate regulations to implement the statute. No one involved at the time imagined it would take DoJ three years to finalize the regulations, but it did. The final regs will finally be published in tomorrow's Federal Register. An advance copy is available here.

Differences from the proposed regs of over a year ago are fairly minor. Most of the flood of adverse comments that DoJ received were actually disagreements with the statute that DoJ had no authority to change. We will have some more comment on the details in a later post.

The next step is for the Attorneys General of the states to apply for certification. In states where the federal courts have obstructed the implementation of the death penalty (including California and Arizona), that application should be made forthwith.

For comparison, the proposed regs of June 6, 2007 are here, and CJLF's comments on them are here. Our supplemental comment responding to the comments of the ABA et al. are here

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