The period to comment on the current proposed opt-in regulations is now complete. A quick review of those comments reveals numerous provocative thoughts and reactions, although I should confess, there are literally hundreds of comments and only a few have been worked through
Perhaps summing up the key problems of AEDPA, and capturing the spirit of the comments so far reviewed, are those of the comments of Habeas Corpus Resource Center’s Executive Director Michael Laurence:
We respectfully submit that the proposed regulations fail to comply with Congress’s mandate to provide a fair process for resolving the critical determination of whether a state is entitled to expedite and truncate federal review of constitutional claims brought by death-row inmates. The proposed regulations neither acknowledge nor address the need for a certification process that guarantees unbiased decision-making. Indeed, the proposed regulations vest unfettered discretion with the Attorney General to determine whether a state has fulfilled the requirements of Chapter 154 and exclude meaningful participation by death-row inmates and their attorneys. Neither the United States Constitution nor the Administrative Procedure Act permits the Attorney General to employ this unfair process, particularly when the consequences of his actions are a matter of life and death for thousands of death-sentenced persons.. . .
In light of these general principles and the settled and well-established judicial interpretation of Chapter 154’s requirements, the deficiencies of the proposed regulations are particularly stark in that they utterly fail to ensure that states seeking to expedite federal review of capital cases have provided the resources in state proceedings necessary to carry out the purpose and requirements of Chapter 154.
The 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 that are sufficient to enable federal court litigation to proceed fairly within the expedited time period. Decisions to certify states for procedural benefits will have a substantial impact on the Federal Judiciary. Chapter 154 requires that federal district courts process affected cases within the earlier of (a) 450 days from the date on which the petition was filed, or (b) 60 days from the date on which the case is submitted for decision. Courts of appeals must process cases within 120 days. This will place a significant burden on federal courts, not only for the habeas cases in question, but for the entire criminal and civil dockets of the courts, which must give precedence to the capital habeas cases. This burden will be particularly severe if states attempt to apply the certification retroatively. If that were permitted, it could expand the volume of cases substantially.
On September 24, 2007, Senators Leahy, Kennedy and Feingold commented on former Attorney General Gonzales´s proposed opt-in regulations. Among their comments were the following:
“The proposed regulations suffer from numerous flaws, as detailed in the comments of the American Bar Association, the Judicial Conference, the Constitution Project, the Habeas Corpus Resource Center, federal public defenders’ offices, practicing attorneys, professors, and many others. Those comments explain how the proposed rules fail to give adequate guidance to States applying for ´opt-in´ certification; fail to ensure that qualifying States have adequate mechanisms for providing competent counsel, fair compensation of counsel, reasonable litigation expenses, and the expeditious provision of counsel; fail to ensure that qualifying States actually apply these mechanisms in all cases; fail to establish any procedures for post-certification review, decertification, or as-applied challenges; and fail to constrain the Attorney General’s decision-making authority or otherwise mitigate the inherent conflict of interest in having the Attorney General make these judgments. The comments paint a devastating picture of regulations that are unclear, unjust, and unwise.”
“The proposed regulations send the message that federal courts should expedite State capital appeals, no matter what the cost. More generally, they unacceptably suggest that the Department of Justice is above the law. As part of the larger project of regrouping and reassessing that it will need to commence under a new Attorney General, the Department should examine how the drafting of these regulations was able to go so far astray.
“Given their severe flaws, the intense controversy they have generated, and the high stakes involved, the proposed regulations are unacceptable in their current form. We request that the Department of Justice withdraw the proposed regulations and, when new leadership is in place, undertake a fundamental reevaluation of this issue to ensure that the regulations conform with congressional intent and with basic principles of justice.”
Other comments of note include those of Richard Neuhoff who asks whether this will actually worsen the crisis in capital representation.
I should note that Regulations.gov indicates that in EXCESS of 29,000 comments were received and a quick skim shows only one, that of rabidly pro-death penalty CJLF, was supportive of the regulations.
We’ve created a very rough database of all the comments for those interested in helping wade through the comments.