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Habeas Corpus "Fast Track" Is Back On Track

This morning we won a major victory in the fight to have capital cases concluded within a reasonable time.  In Habeas Corpus Resource Center v. U.S. Dept. of Justice, No. 14-16928, the U.S. Court of Appeals for the Ninth Circuit vacated an injunction issued by U.S. District Judge Claudia Wilken and put the "fast track" process back on track.
The story goes back to the 1980s.  A committee of the Judicial Conference chaired by retired Justice Lewis Powell found two big problems in the collateral review of capital cases.  Some states did not provide lawyers for death row inmates on state collateral review.  The Constitution requires state-paid lawyers for the first review of the case on the trial record (direct appeal) but not for the second round where new evidence can be brought in (habeas corpus or a substitute for it).  The second problem was that a third review of the case in federal court -- federal habeas corpus -- was taking far two long.

A prime example of pointless delay in federal habeas corpus can be seen in the case of Lawrence Bittaker.  He kidnapped and murdered five teenage girls, raping and torturing most of them, and was convicted on 26 felony counts at all.  If we are going to have capital punishment, this is most definitely the kind of case that deserves it.  The judgment was affirmed by the California Supreme Court in 1989.  The federal habeas corpus petition was filed in 1991.  Briefing was completed in federal district court in 2005.  Since then, the federal district judge has simply sat on the case, refusing to hold argument or issue a decision.  It has been nearly 11 years.

The Powell Committee decided to address both issues with one measure.  In return for states providing qualified and adequately funded counsel on state collateral review (as most states were already doing), the states would receive certain benefits in federal habeas corpus to speed up review of the cases, i.e., the fast track.

When Congress enacted the Powell Committee reforms as part of the habeas portion of the Antiterrorism and Effective Death Penalty Act of 1996, it boosted the benefits to the states.  In particular, it imposed time limits on the federal courts to resolve the cases.  Federal district courts got a tight deadline of 180 days from the filing of a capital case case to final disposition.

Horrified by this tight deadline, federal courts gave the requirements for qualification an extremely restrictive interpretation, and not a single state was held to qualify.  The Supreme Court failed to review these dubious decisions.

In 2006, Congress amended the law.  It relaxed the deadline on district courts to 450 days (a year and 3 months).  It also removed the decision on whether a state qualified from the courts that would be subject to the deadline (in light of their obvious bias and conflict of interest) and assigned it to the Attorney General with review by the D.C. Circuit.  Finally, Congress directed the Attorney General to promulgate regulations to establish a certification procedure.  Congress did not authorize the Attorney General to make regulations on the substantive requirements for certification.  It expressly provided that the requirements in the statute itself are the only requirements.

For the remaining two years of the Bush Administration, DOJ dragged its feet and only promulgated the regulations at the end of the term.  The capital defense bar challenged them in federal district court, maneuvering the case before the very judge who had erroneously held that California did not qualify earlier, one of the judges that Congress had moved the decision to the Attorney General to get away from.  Instead of appealing the erroneous injunction, the Obama DOJ rescinded the regulations and dragged its feet establishing new ones.

Arizona finally got tired of waiting and applied for certification without regulations.  Texas followed suit.  When DOJ would not act, Arizona went to the D.C. Circuit with a petition.  DOJ then belatedly promulgated the regulations, and Arizona dismissed its petition.

Two taxpayer-funded legal organizations, the California Habeas Corpus Resource Center and the Federal Public Defender of Arizona filed suit in their own names, not on behalf of their death row clients, to enjoin implementation of the regulations.  They maneuvered the case once again to Federal District Judge Claudia Wilken, and once again she ruled in their favor.

DOJ did appeal, but it failed to ask for a stay of this erroneous judgment, so the fast track certification procedure has been stalled.  CJLF filed an amicus brief in the Court of Appeals on behalf of two family members of murder victims, Marc Klaas of California and Edward Hardesty of Arizona.

Today, two and a half years after the initial injunction, the Court of Appeals vacated the injunction and remanded the case with directions to dismiss.  First, the attorney offices do not have standing.  The "injury" to them is merely having to operate in an environment where the law does not fully answer all questions and they will have to make litigation decisions in an uncertain environment.   Well, welcome to the profession, folks.  "Assisting and counseling clients in the face of legal uncertainty is the role of lawyers ...."

Second, and most importantly, it would not have mattered if they had brought the action in the name of their death row clients.  Their challenge to the regulations is not "ripe" for review until they have been applied to a specific case.

Both points are well established law.  Judge Wilken's decision was clearly wrong out of the gate.  This erroneous decision has delayed for an additional two and a half years a law that Congress enacted for the specific purpose of speeding things up.

At the time AEDPA was enacted, the "fast track" was supposed to be the centerpiece of the reforms.  Its implementation is long overdue.  Now we can finally get moving.

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