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AEDPA Fast Track Regs Finally Published, Badly Overdue and Badly Flawed

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As amended in 2006, the Antiterrorism and Effective Death Penalty Act requires the US Attorney General to certify if a state has provided counsel for indigent death row inmates for their state collateral review.  If so, the state gets the benefit of streamlined review in federal court.  The 2006 amendment also requires the AG to promulgate regulations for the procedure of this review, not the substance.  DoJ has dragged its feet for an astonishing and inexcusable seven years, derelict in its duty to implement a law that was passed to speed things up.

Last April, Arizona Attorney General Tom Horne got tired of waiting and applied without the regulations.  See this post.  After DoJ refused to decide until it finished its foot-dragging on the regulations, Horne took the case to the DC Circuit for review.  See this post.  That proceeding is still in its preliminary stages.

That was apparently the incentive necessary to get DoJ off its institutional duff.  On Friday night, when things are done in Washington that the doers don't want in the paper, the regs came out on the Internet.  They are in today's printed Federal Register here.  My comments from last March are here.

In the pattern typical of the Obama Administration, the regs defy the law where DoJ doesn't like what the law says.
The 2006 amendment to AEDPA specified 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."  The specific purpose of this provision was to abrogate the decision of the Ninth Circuit in Spears v. Stewart, 283 F.3d 992 (2002) which denied the application of the fast track to Arizona on the ground that its appointments of counsel had not been timely, even though there is no timeliness requirement in the statute.  If that were not clear enough from the face of the amendment, the sponsors in both houses said so on the floors of both chambers.  The regulation ignores the text and history of the statute and imposes a timeliness requirement anyway.

The problem with timeliness is that the defense bar can defeat a state's qualification despite the state's best efforts by boycotting capital cases.  That was the situation with Arizona at that time, and California presently faces a problem with the lawyers who handle indigent appeals refusing the capital cases despite the sharply higher compensation rate.

The regulation also purports to make certifications expire after five years, forcing the state to jump through the hoops again to maintain its certification.  This provision is patently lawless.  Congress made certification one of the conditions for application of Chapter 154, but it made no provision for a certification, once made, to expire.

The question now is how, not whether, the lawless provisions of the regulations should be attacked.  One way to attack the timeliness rule is for states to go ahead and apply and, if denied, take their cases to the D.C. Circuit.  Congress provided that the D.C. Circuit's review is de novo (§2265(c)(3), thank you, Senator Leahy), so the usual deference should not apply. 

The other way is to attack them in a civil action in a district court.  The expiration provision will probably need to be attacked in this way, since it is not a ground for denial of a certification.

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Is there anyone in public life more loathesome than Eric "Marc Rich" Holder? In a sense, the man is the perfect embodiment of everything that's wrong with the Democrat party and Washington in general:

Incompetent, a moral pygmy, more loyal to party than nation, connected, ambitious and unctuous.

These people even play politics to help out murderers.

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