American Bar Association Calls Proposed Rule on Death Penalty Appeals “Deeply and Fundamentally Flawed”

WASHINGTON, D.C. — Aug. 30, 2007–The American Bar Association is taking issue with proposed regulations to implement a statute that offers states a drastically streamlined habeas corpus review in death penalty cases in exchange for improvements in their post-conviction defense process. In comments filed Aug. 25 with the Department of Justice, the ABA said the proposed rule ignores key parts of the authorizing legislation and fails to follow what Congress outlined.

“At its core, the proposed rule fails to abide by this compromise and would allow states to obtain streamlined review without ensuring that capital defendants receive competent counsel in post-conviction proceedings,” the ABA comments stated.

The ABA filed the comments in response to proposed rulemaking regarding the Certification Process for State Capital Systems.  The association’s concerns included what it believes is a disregard for significant aspects of the implementing legislation. Specifically, the ABA said the rules as proposed raise a number of deep concerns, because they:

• Could result in the appointment of any counsel, rather than expressly calling for competent counsel to represent capital defendants in their appeals.
• Ignore statutory requirements that make it clear which defendants would face streamlined review.
• Fail to establish uniform standards for states seeking certification.
• Allow for ex parte communications between the attorney general and the state applicant, and fail to provide for public scrutiny of public application claims.
• Create a “content-free” application process for states.
• Lack safeguards that enable state decertification.

“The proposed rule proscribes no content for a state application other than an ‘attestation’ that the applicant is an ‘appropriate state official’ and an ‘affirmation’ that the state has provided notice of the request to the chief justice of the state’s highest court,” the ABA comments noted. “By opting to fail to specify the requirements of the application, the Justice Department has proposed an unworkable mechanism that will result in arbitrary and capricious agency action. At a minimum, the proposed rule should require the state applicant to proffer some evidence that the state’s mechanism actually results in the appointment of competent post-conviction counsel to indigent capital defendants (such as a list of the proposed names of qualified attorneys who are eligible to be appointed), the standards of competency for the appointment of counsel (so that the standards for selection of eligible counsel are clear), and the mechanism for compensation and expense reimbursement for counsel.”

The association also recommended that the ABA’s Guidelines for the Appointment and Performance of Counsel in Death Penalty Cases be incorporated into the evaluation process in order to add objectivity to the process.