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Damn the regulations, full speed ahead!

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The United States Department of Justice stabbed justice in the back yesterday. It is high time for the attorneys general of the states to take decisive action.

The "fast track" for federal court review of state capital cases was originally enacted by Congress in 1996 as part of the Antiterrorism and Effective Death Penalty Act.  States that provided counsel for death row inmates in the second stage of state-court review of their cases would receive the benefit of a streamlined review in federal court, including time limits on those courts.  However, the original system had a built-in conflict of interest in that the courts subject to the constraints were the ones who decided whether a state qualified.  They invariably found reasons not to give the states the promised benefits.

In 2006, in the bill that renewed the Patriot Act, Congress removed the authority to decide whether a state qualified from the conflicted courts and gave it to the Attorney General with review by the Court of Appeals for the D.C. Circuit, the one circuit that does not hear state habeas cases. The bill also provided that the Attorney General would promulgate regulations to implement the act.

The Bush Administration took almost two years to produce and finalize regulations at the very end of that Administration.  A federal district court in California enjoined implementation of the regulations, despite the fact that the core purpose of the amendment was to remove the certification issues from the courts that decide habeas cases. The Obama Justice Department failed to challenge this injunction.

In a notice dated Tuesday, the Justice Department proposed rescinding the already much-delayed regulations, to be replaced with new regulations later.  This move could further delay, possibly by years, implementing a law that has already been stalled for 14 years.

It is very clear that there will be no justice from this Justice Department. So what should be done?

Although the act directs USDoJ to promulgates regulations, nothing in the act depends on those regulations or permits a state qualifying for the fast track to be denied the benefits for which it qualifies under law until USDoJ gets around to promulgating them. State attorneys general in states that have adopted qualifying appointment of counsel mechanisms (which is most of them), can and should apply now and not wait any longer for regulations.

If USDoJ stalls or denies certification, go to the D.C. Circuit. The act provides that the court's review is de novo, so in the end it really does not matter what Eric Holder thinks.

I call upon every attorney general in a qualifying state to act immediately. I call upon every candidate for attorney general in a qualifying state to pledge that he will vigorously pursue qualification immediately upon election.

Eric Holder has declared war. So be it. Full speed ahead!

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