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USDoJ Continues to Stall Death Penalty "Fast Track"

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Today we have more shenanigans from the U.S. Justice Department to delay and obstruct the "fast track" for federal review of state death penalty cases.

For background on the fast track law and the regulations, see this post and this post.

The comment period on the proposed regulations ended June 1, 2011.  Given that most of the adverse comments were either (1) completely irrelevant spam attacking the death penalty generally, or (2) requests for USDoJ to impose additional requirements for qualification beyond those specified by Congress, the comments should have been quickly rejected and the regulations promptly finalized.  Congress expressly and unequivocally forbade the imposition of additional requirements in 28 U.S.C. §2265(a)(3):  "There are no requirements for certification or for application of this chapter other than those expressly stated in this chapter."  How clear can you get?

Today, USDoJ published this notice, requesting further comment on three proposed changes.  Two of the proposals are patently illegal.  Proposed Change 3 is to resurrect a requirement of timeliness in appointments, precisely the judicial rewriting of the prior statute that §2265(a)(3) was enacted to abrogate.  Proposed Change 5 would sunset certifications after 5 years, requiring states to start over.  Congress provided that Chapter 154 shall apply if the state has adopted the qualifying mechanism and the AG so certifies.  The adoption is a single event, and from that point on the chapter shall apply.  What part of "shall" do you not understand?

The other proposed changes are also invalid, in my view.  I will get into them in more detail when I prepare CJLF's comments on these proposals.

Ideally, Congress should put a line in an appropriate bill saying the December 2008 regulations are effective immediately and all subsequent notices are void.

3 Comments

What else does one expect from this lawless AG?

This is what we should expect when a candidate for office (say, a candidate for AG appearing before the Senate Judiciary Committee) says that he "personally" disapproves of the death penalty, but "will follow the law."

The problem is that governance involves at least as much discretion as law. In matters of this kind, personal attitudes can effectively block the death penalty, but do so so deeply within the bureaucracy that it's difficult to ferret out, much less explain the the public, that the candidate's seeming assurance that he would "follow the law" was really a clever dodge that actually meant, "I will frustrate the law, but in a way you'll barely be able to see, so I'll get away with it."

Eric Holder is loathesome and a disgrace.

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