A major reform of the Antiterrorism and Effective Death Penalty Act of 1996 has lain dormant for 22 years, blocked by judicial hostility, bureaucratic foot-dragging, and obstructive litigation. With the regulations on the books, the litigation to block them resolved, and a new administration in office, this major yet nearly forgotten reform may finally see the light of day.
States are required to provide counsel for indigent defendants at trial and on direct appeal but not in state collateral review (habeas corpus or a substitute). Based on the report of a committee headed by retired Justice Lewis Powell, Congress offered states a deal. Set up a system for appointment of state collateral counsel with standards of qualification and adequate funding, and you get an expedited trip through federal habeas corpus.
The federal process can be expedited in these circumstances because qualified counsel have already litigated the major claims in state court. Between the procedural default rule and the deference standard, if those rules are correctly applied, there should be little for the federal court to decide in most cases.
In the face of judicial hostility wrongly rejecting states' claims to qualify, Congress in 2006 amended the law to vest the initial qualification decision in the U.S. Department of Justice. AP reports that the application of Texas to be certified is finally moving forward.
The usual suspects are, of course, raising the objection that the present extreme delays are needed to prevent the execution of innocent people. Most capital cases, however, involve no doubt at all about the identity of the perpetrator. For those cases where there is such doubt, federal law makes an exception to the successive petition rule for cases of actual innocence. There are also state exceptions to their successive petition rules, see, e.g., Cal. Penal Code ยง 1509(d), and executive clemency.
States are required to provide counsel for indigent defendants at trial and on direct appeal but not in state collateral review (habeas corpus or a substitute). Based on the report of a committee headed by retired Justice Lewis Powell, Congress offered states a deal. Set up a system for appointment of state collateral counsel with standards of qualification and adequate funding, and you get an expedited trip through federal habeas corpus.
The federal process can be expedited in these circumstances because qualified counsel have already litigated the major claims in state court. Between the procedural default rule and the deference standard, if those rules are correctly applied, there should be little for the federal court to decide in most cases.
In the face of judicial hostility wrongly rejecting states' claims to qualify, Congress in 2006 amended the law to vest the initial qualification decision in the U.S. Department of Justice. AP reports that the application of Texas to be certified is finally moving forward.
The usual suspects are, of course, raising the objection that the present extreme delays are needed to prevent the execution of innocent people. Most capital cases, however, involve no doubt at all about the identity of the perpetrator. For those cases where there is such doubt, federal law makes an exception to the successive petition rule for cases of actual innocence. There are also state exceptions to their successive petition rules, see, e.g., Cal. Penal Code ยง 1509(d), and executive clemency.
The DC Circuit is not universally populated by persons of sense. We will see how things turn out.
The larger question--what is to be done about the judicial intransigence? Statutes say what they say, and when courts blow off the law, why do they have to be followed? To hold that they are to be followed is to say that the law is subservient to a court judgment. That obviously has to be true, but the quid pro quo is that courts cannot abuse that power to enshrine lawlessness in such orders.
Courts in America today seem to think that they are entitled to respect merely due to the fact that judges wear robes and have coercive power. Those days should come to an end.
By federal law, do you mean McQuiggen v. Perkins or is there a statutory provision?
"Courts in America today seem to think that they are entitled to respect
merely due to the fact that judges wear robes ..."
Exactly.
Consider the DWI convicted, probation violating, still-employed, disrespectful
"judge" of nearby Rochester, NY (Astacio) for supporting evidence.