ABA Calls AG's Fast-Track Authority Seriously Flawed' - UPDATED

That's the title of a web article at the National Law Journal website, here.

The American Bar Association on Thursday called "seriously flawed" the new rules that give the U.S. Attorney General authority to approve state "fast track" procedures to speed death penalty appeals through the courts.

Federal judges previously had authority to determine whether a state met the criteria for competent legal representation and other safeguards before times allotted to capital defendants' post-conviction appeals could be curtailed. Under the amended USA Patriot Act approved last year that authority transferred to the attorney general.

In response to proposed rules regarding the certification process for implementing the changes, the ABA stated that the new rules have no minimum requirements other than a state applying for "fast track" must attest to a process for appointment of competent counsel.

"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," according to an ABA statement.

The ABA news release is here.

ABAThe 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.

UPDATE -- The full text of the ABA comments is here.  Earlier coverage of the AG's proposed opt-in or fast-track authority is here.