September 2007

Judiciary Expresses Concerns About Proposed Regulations Regarding Capital Cases

The Judicial Conference has expressed concerns about proposed regulations issued by the Department of Justice for states seeking to qualify for expedited federal habeas corpus review procedures in capital cases.

Concerns about the certification-implementation regulations proposed June 6, 2007, were aired in an August 1 letter from the Conference to DOJ. In 1996, Congress enacted Chapter 154 of the U.S. Code’s Title 28 as part of the Antiterrorism and Effective Death Penalty Act (AEDPA).

Chapter 154 provides for expedited procedures in federal capital habeas corpus cases when a state is able to establish that it has provided qualified, competent, adequately resourced, and adequately compensated counsel in state post-conviction proceedings to inmates facing a capital sentence.

The provisions of Chapter 154 are modeled on recommendations included in the 1989 Report of the Ad Hoc Committee on Federal Habeas Corpus in Capital Cases, which was chaired by then-retired Justice Lewis F. Powell, Jr. The Powell Committee report, which was endorsed by the Conference in 1990 with two modifications, identified the failure of states to provide capital habeas petitioners with adequately funded and competent counsel as a significant factor affecting the length of time it takes such cases to move through the state and federal courts.

It recommended expedited review of state death sentences conditioned on a state establishing a system for “providing competent counsel for inmates on state collateral review.”

Under the AEDPA, determination of whether states were “certified” for the expedited federal procedures was to be made by the federal courts. The USA PATRIOT Improvement and Reauthorization Act of 2005 (Pub. L. No. 109-174) shifted the certification determination from the federal Judiciary to the Attorney General of the United States, subject to de novo review in the U.S. Court of Appeals for the District of Columbia Circuit. The proposed regulations issued by DOJ in June 2007 seek to implement the provisions of the PATRIOT Reauthorization Act.

In its letter, the Conference urged DOJ to revise the proposed regulations to provide definitions of “standards of competency,” “competent counsel,” “compensation of appointed counsel,” and “reasonable litigation expenses.” The Conference noted that “[s]uch definitions are needed to provide guidance, criteria, or other notice of what a state must do to satisfy the statutory or regulatory requirements.”

The letter stated that “[t]he absence of specific competency standards makes it unclear what is required of the states to qualify and provides no guidance about the criteria to be considered by the decision-maker, thereby opening the door to certification in cases where a state has not in fact provided counsel services sufficient to enable federal court litigation to proceed fairly within the expedited time period.” The letter also noted that “[d]ecisions to certify states for procedural benefits will have a substantial impact on the Federal Judiciary.”

The prescribed time restrictions for processing capital habeas cases will place a significant burden on the federal courts, not only for the habeas cases in question, but also for the entire criminal and civil dockets of the courts, which must give precedence to the capital habeas cases.

Under the Criminal Justice Act, the federal Judiciary bears enormous costs associated with the representation of state death-sentenced defendants in federal court. When states fail to provide reasonably compensated, competent counsel, or reasonable litigation expenses, the attorney appointed in the federal habeas proceeding is required to perform work that should have been performed in state court, dramatically driving up the cost of federal representation.

As noted in the letter, the Judicial Conference has consistently supported providing competent counsel to habeas petitioners at all stages of post-conviction review in capital cases, and it has opposed restrictions that would deprive the federal courts of their traditional role in reviewing federal constitutional claims arising originally in state criminal or post-conviction proceedings.