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Arizona AG Takes A Momentous Step Toward An Effective Death Penalty

When Congress passed the Antiterrorism and Effective Death Penalty Act of 1996, one of the principal provisions was the new Chapter 154 of U.S.C. Title 28.  The new chapter was based on a proposal drafted seven years earlier by a committee headed by retired Justice Lewis Powell.  In return for providing counsel on state collateral review, with qualification standards and adequate funding, states would receive a number of advantages to expedite their cases in federal habeas corpus.  Among these were time limits on both the district court and the court of appeals.

It didn't work out that way.  The lower federal courts were hostile to a law that would place time limits on them.  Most egregious of the decisions was Spears v. Stewart, 283 F.3d 992 (CA9 2002).  The Ninth Circuit found, correctly, that Arizona met all of the requirements for qualification that are written into the text of the statute, but it wrongly denied Arizona the benefits of qualification because it found a violation of a requirement of timely appointment that it read into the statute.

In 2006, Congress amended the law.  It took the decision on qualification away from the courts subject to the time limits -- which have a conflict of interest -- and gave it to the Attorney General with de novo review by Court of Appeals for the D.C. Circuit, the one federal circuit that does not do state-prisoner habeas cases.  In addition, Congress expressly provided that the requirements in the statute are the only requirements for qualification.  Neither the AG nor the court can make up additional requirements.  Finally, in a seemingly innocuous provision, Congress directed the AG to "promulgate regulations to implement the certification procedure ...."  Congress did not authorize regulations to impose additional requirements for certification, obviously, having expressly forbidden any additions.
The Justice Department under President Bush, preoccupied with terrorism-related issues, put the regulations on the back burner, and did not promulgate them until that Administration was on its way out the door.  President Obama's Justice Department rescinded them and has dithered ever since.  The dithering is not over the rules of procedure the statute actually authorizes DoJ to make but rather over the rules of substance that Congress has forbidden DoJ to make.  The fact that the Obama Administration has stalled for four years now strongly indicates intentional obstruction.  The saga is tracked in prior posts:

February 5, 2009
May 26, 2010
November 23, 2010
February 13, 2012

While the statute directs DoJ to promulgate regulations, nothing in the law prevents states from applying for certification in the meantime, and nothing authorizes DoJ to stall in its consideration merely because it has dragged its feet.  The whole purpose of the law, after all, was to speed things up.

Arizona Attorney General Tom Horne has stepped up to take on this task.  By a letter to US Attorney General Eric Holder, he has applied for certification.  He has also served notice that a failure to decide within 90 days will be taken as wrongful denial, and he will take the case to the D.C. Circuit.  He has also issued this press release.

The case will, of course, go to the D.C. Circuit no matter what the USAG does, because one side or the other will seek review there.  Because Congress has provided that review is de novo, the decision is really up to the court, with the AGs decision being merely a preliminary step.  If the D.C. Circuit decides in favor of certification, as it should, the path is clear for other states to seek certification as well, reducing the length of federal review of capital cases from the decade or more common in some circuits down to a couple years.  An effective death penalty is in sight in states where it has been obstructed by the federal courts.

Bravo!  Let us have a standing ovation for Mr. Horne.


"The Justice Department under President Bush, preoccupied with terrorism-related issues, put the regulations on the back burner, and did not promulgate them until that Administration was on its way out the door."

Well, this DOJ was pre-occupied with persecuting CIA patriots who helped keep the country safe, running guns into Mexico, confiscating drugs from states, covering for Jon Corzine (D) and prosecuting a father for defending his kids from a grizzly bear. Mr. Holder certainly has his priorities.

Perhaps solving this issue failed to relate positively with the concern
of AG Eric Holder, plus he's busy dealing with so much:

"Even as we fight a war against terrorism,
deal with the reality of electing an
African American as our President for the first time
and deal with the other significant issues of the day, the need to:
--- --- confront our racial past, and
--- --- our racial present, and to
--- --- understand the history of African people in this country, endure."

"Simply put, to get to the heart of this country one must examine its racial soul."

"…in things racial we have always been and continue to be, in too many ways, essentially a nation of cowards."

"…we, average Americans, simply do not talk enough with each other about race…Through its work and through its example, [for] this Department of Justice, as
long as I am here…
This is our duty and our solemn obligation."—justice.gov, 2/18/09

"…to describe it in those terms I think does a great disservice to people who put their lives on the line, who risked all, for my people."—

{testimony to House, 3/1/11} R. Christie, Blackwards, 2012


Just surmising here, but my guess is that the DC Circuit (after the Holder DOJ waits for the 90 days to expire) is going to bend over backwards not to embarrass DOJ. Thus, Arizona's petition is going to languish for quite some time.

Maybe I am wrong to be cynical, and maybe this will happen by the end of the year (or thereabouts)--but I doubt it. AEDPA now is routinely flouted by federal courts. Does anyone think SCOTUS would jam DOJ and the DC Circuit? We live in a legal culture where capital punishment is considered base and where the states are expected to live with whatever obstacle federal judges (in their infinite wisdom) decide to impose. Capital habeas stay litigation--no matter how late the appeal or how incredible it is--has become a game of "Mother may I." I don't know what Arizona's petition will do to change all of that.

I am not a defeatist, and I believe that AGs should take their fights with federal judges to the people and harshly criticize federal courts (including SCOTUS) when they stay executions based on last-minute litigation. But unless and until those charged with getting these guys to the gurney start punching back, people like Trista Eng's family are going to be an afterthought to federal judges and their lawless games. Maybe Mr. Horne's letter is the first salvo in a long fight for justice. I sincerely hope so, but the federal courts' opposition is going to be formidable. It's a battle worth fighting--and not just for the sake of victims (although that, in my mind, is sufficient) but also for our democracy and the rule of law.

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