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New AEDPA Opt-In Regs Published

When Congress passed the Antiterrorism and Effective Death Penalty Act of 1996, the primary feature was supposed to be a reform that promised states a rapid and efficient trip through federal review if only they provided adequate counsel for state collateral review, which most states did at the time anyway.  That reform was spiked by hostile federal courts who did not want to be subject to the time limits and gave the statute a cramped construction to avoid implementing it.

In the Patriot Act reauthorization bill, Congress took the decision of whether a state qualified away from the federal habeas courts, with their conflict of interest, and gave it to the US Attorney General with de novo review by the US Court of Appeals for the District of Columbia Circuit, the one circuit that does not do state-prisoner habeas.

The act also provided for the Attorney General to promulgate regulations to implement the mechanics for certifying whether a state qualified, which was supposed to be a quick process.  Inexplicably, the Bush Administration Justice Department dragged its feet and did not publish final regulations until the end of the Administration.

The California Habeas Corpus Resource Center then commenced litigation to block the regulations, something it is not authorized to do under the statute creating it, and filed in a federal district court that would be subject to the time limits, a court Congress intended to cut out of this process due to its conflict of interest.  The Obama Administration Department of Justice failed to fight this blatant violation of the intent of Congress.

On top of all that, the Obama DoJ rescinded the already long overdue regulations and announced an intent to replace them.  Many supporters of justice, myself included, feared the worst.
The replacement regs were published for comment today.   On a first read, I am pleasantly surprised by what is not in them.  I had fully expected this DoJ to sneak in through the back door the timely appointment requirement invented by the Ninth Circuit in Spears v. Stewart, 283 F.3d 992 (2002) and abrogated by Congress in the 2006 legislation, 28 U.S.C. §2265(a)(3).   Spears is cited numerous times in the commentary, but not for this point.

On standards for who is "qualified" as counsel, the regulations acknowledge that any state whose standards are equal or greater than those provided by Congress for federal capital cases will qualify.  Congress's standards aren't that tough -- five years in the bar and three years felony litigation experience.  When I proposed at a legislative hearing some years back that California adopt the federal standard, the ACLU came forward and stated that they were shocked, shocked that I would lower our standards to below those of Mississippi.

I will have more to say when I have had a chance to read these regs more thoroughly.


The burden of proof legitimately rests with pro-death penalty advocates to engender the sort of radical and unrealistic reforms necessary to overhaul the entire death penalty structure in the United States.

With all due respect, this article smacks of intense romanticism. As long as America has the death penalty, it will continue to be unworkable.

The death penalty is un-American. Those who advocate its radical reform are on the same moral level as other kinds of big government tax and spend authoritarians. The American taxpayer should not be wasting money on these so-called “conservative” pet spending projects.

We already did the overhaul in the late 1970s. The opponents' own studies (e.g., Baldus) show that the post-Furman reforms successfully reduced race-of-defendant bias below the threshold of detectability.

The other arguments against the current death penalty have been fully refuted in this blog and elsewhere many times.

Why is the burden of proof on pro-death penalty people? The Constitution specifically contemplates capital punishment. And how is the death penalty unworkable? Despite the tireless efforts of activists, both on the bench and off, we still have executions here.

“The Constitution specifically contemplates capital punishment”.

I agree. In 1791, sodomy in some states was punishable by death at the end of a rope, just as it is today in the Islamic Republic of Iran.

You don’t call that conservatism. You call that authoritarianism.

But on the plus side, our Founding Fathers did not recognize any such thing as “society” in the context of criminal punishment (which to my mind is VERY conservative). This is because criminal prosecutions in the 18th century were deemed private matters. Public prosecutors simply did not exist.

“And how is the death penalty unworkable?”

Just take a good look at California. Those who think that California will end up like Virginia are flatly wrong.

A dysfunctional death penalty is very much worse than no death penalty at all.

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