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NYT on Speedy (Executions) Gonzales:

Adam Liptak's latest column discusses the new Justice Department rules that will allow the Attorney General to speed up appeals in capital cases.

Under an odd provision in last year's reauthorization of the USA Patriot Act, the antiterrorism law, the attorney general is to take on a role that has for more than a decade belonged to the courts. After the Justice Department finishes writing the regulations, Mr. Gonzales will get the job of deciding whether states are providing condemned inmates with decent lawyers.

If the answer is yes, federal litigation in capital cases from those states — one of the main reasons for the lengthy appeals — will move to a fast track. Inmates will have to file habeas corpus challenges in six months rather than a year, and judges will be subject to strict deadlines. Appeals courts, for instance, will get 120 days to decide cases.

The trade-offs themselves are not new, and they are not necessarily a problem. If states can be encouraged to provide able defense lawyers to death row inmates in state proceedings, the federal courts may indeed have less to worry about.

But giving the power to decide when a fast track is warranted to an interested party like Mr. Gonzales is a curious way to run a justice system.

Related Posts (on one page):

  1. NYT on Speedy (Executions) Gonzales:
  2. AG Involvement in Capital Appeals:
PatHMV (mail) (www):
My initial response was rather the same, but then I dug deeper to look at the statute, which is 28 USC 2265. Reading that, the related statutes, and the Attorney General's promulgated rules [pdf], and I'm not sure this is a very big deal at all. As best I can tell, there is not much discretion in the certification process. The statute spells out the relatively minimal requirements a state must have to qualify, and the existence of those requirements is primarily determined by a certification from a state official. There is no provision in the law, as best I can determine, for an evaluation by the AG (or the court under the prior law) of the quality of the procedures provided or the quality of the representation provided.

If anything, the thing to be concerned about is that it is the state's attorney general who must certify the existence of qualifying state procedures. This is in the DOJ proposed rules linked to above. I cannot determine whether the prior rules also provided for the state AG to make the certification, but frankly it seems likely, since it is a question of what state statutes provide (and, again, contain no evaluation requirement as to the effectiveness of the statutorily-provided procedures or defense counsel).

On the whole, it seems like this certification process is much more in the nature of an executive function rather than a judicial one. I might prefer a certification by someone other than the chief prosecutor of the land, but I'm not sure where else one would vest it.
8.20.2007 12:19pm
Dave N (mail):
I would also note that the article does not mention that the Attorney General certifications are subject to review by the D.C. Circuit Court of Appeals. Thus, there is a judicial oversight of the process.
8.20.2007 12:21pm
Habeas Clerk:
I don't have a huge problem with the premise underlying the opt-in provisions, which is that federal habeas review will be limited and expedited in exchange for the states implementing standards for the appointment and compensation of post-conviction counsel in capital cases. What I do find problematic is that (1) certification does not require an the examination of the quality of the state process, and (2) that the chief United States prosecutor decides initially whether a state has met the requirements. If there is a concern that the federal courts that will be affected by the opt-in provisions have some type of conflict of interest in deciding whether a state has complied, why not just have the DC Circuit decide the question, with the US AG eliminated?
8.20.2007 12:40pm
OrinKerr:
I think the key explanation is this:
These days, federal courts in the generally conservative Fourth Circuit, which covers Virginia and four other states, grant habeas petitions from death row inmates 2 percent of the time. In the more liberal Ninth Circuit, which covers California and eight other Western states, petitioners succeed 35 percent of the time.

The new law was pushed by legislators and prosecutors in Arizona and California, and it is an expression of their frustration with the Ninth Circuit.
8.20.2007 1:07pm
CrazyTrain (mail):
I agree strongly with Habeas Clerk. Even if we had a competent attorney general moreover, it strikes me that the certification decision should be in the judicial branch, and putting it in the DC Circuit would be a good thing, rather than leaving it to the regional circuits -- (further and given the importance of the issue, I think a mandatory appeal of a decision to grant an opt-in to the Supreme Court should also be considered). For one thing, I think a good uniform standard for meeting the opt-in provisions is a good idea. The stats Orin notes are particularly disturbing regardless of one's view on the death penalty -- we have two circuits with dramatically different ideas of federal habeas review. There likely will always be these kinds of differences, but given the importance of this opt-in provision, I think we need a strong uniform standard.
8.20.2007 2:22pm
CrazyTrain (mail):
Also, as of a few years ago at least, I don't think any federal court had certified a state, with the notable exception of the Ninth Circuit's certification of Arizona, which was then later vacated for some non-merits related reasons.
8.20.2007 2:24pm
OrinKerr:
I find myself in the disturbing position of agreeing tentatively with CrazyTrain, at least as a matter of policy. I wonder, though, are there Article III problems with giving the decision to a federal court? What would the case or controversy be?
8.20.2007 2:51pm
Eric M. Freedman (mail):
The statute (with its substantive standards for counsel systems) hasn't changed since 1996, only the decisionmaker.
Until now, the issue has been litigated in individual cases (after the SCOTUS tossed a class action seeking to declare that CA didn't qualify), resulting in a long string of cases at the Dist. and Circuit level saying that the systems in particular states did not qualify (and therefore the government was not entitled to the procedural advantages in this case).
There is no reason this couldn't continue that way in ordinary course (resulting presumably eventually in a Circuit or SCOTUS ruling that some state's system does qualify).
Or, Orin, one could by statute authorize what the SCOTUS rejected and allow a declaratory judgment action by anyone now on Death Row whose case is still in state court, and who therefore faces the possibility of going into federal habeas.
8.20.2007 3:50pm
PatHMV (mail) (www):
One could also presumably challenge, in the courts, the administrative action by the AG in making the certification.
8.20.2007 4:35pm
Kovarsky (mail):
Don't fool yourselves. As Eric points out, the unitary review procedures have been on the books since AEDPA was enacted, and they are based on a set of recommendations from the Powell Committee, a group commissioned by Rehnquist in '89. The idea is a quid pro quo, whereby the states provide a modicum of procedural "assistance" (e.g. counsel) and, in return, gain the "advantage" of expedited timetables.

The problem is states never opted into the unitary process because the courts' interpretation of the normal AEDPA provisions has been so aggressive. The AG's office took over the certification requirements to make it easier for states to opt in, i.e. in order to lower the threshold of procedural "assistance" necessary for them to do so.
8.20.2007 5:06pm
Dave N (mail):
I was reading the comment thread and had the same initial thought as OK. The Supreme Court has held that unless there is a "case" or "controversy" the courts lack jurisdiction. Advisory opinions are a "no, no." The Supreme Court reaffirmed this principle last term: Hein v. Freedom from Religion Foundation, 127 S.Ct. 2553, 2562 (2007)

This, it appars that the certitcation procedure is designed to create a real case for the D.C. Circuit to review. After all, if the Attorney General certifies, say, California, then a California death row inmate would have standing to challenge that determination in the D.C. Circuit.

I do have a question about jurisdiction in an "as applied" setting. For example, let's assume that California is allowed to "opt in" but Death Row Inmate X wants to challenge whether California fully complied with the procedures it had set in place. Who decides that appeal? The D.C. Circuit? or the Ninth?
8.20.2007 5:37pm
CrazyTrain (mail):
I was reading the comment thread and had the same initial thought as OK. The Supreme Court has held that unless there is a "case" or "controversy" the courts lack jurisdiction. Advisory opinions are a "no, no." The Supreme Court reaffirmed this principle last term: Hein v. Freedom from Religion Foundation, 127 S.Ct. 2553, 2562 (2007)

Dave, I hate to be mean (well, actually I dont), but those of us reading this thread and commenting on it are quite familiar with the very basic principles you just cited; indeed, I believe I learned that in 11th grade history.

As Kovarsky noted, these issues have been litigated in the federal courts for years in what are undisputably actual cases and controversies where very fundamental rights are at stake. And that answers Orin's question, to a degree. The issue of how to get the review into the DC Circuit when it arises out of a regular habeas petition could prove tricky as an administrative issue, but jurisdictionally, the question of whether a state is entitled to fast track arises in individual habeas petitions.
8.20.2007 6:01pm
CrazyTrain (mail):
I find myself in the disturbing position of agreeing tentatively with CrazyTrain

Orin, you would be surprised by the fact that I probably agree with your understanding of the constitution generally, the scope of judicial power and the role of the federal courts, the fourth amendment and what constitutes a reasonable expectation of privacy, federalism, and many other issues. [My main point of disagreement with you, and where I have been very passionate about it, is where you seem (to me at least and hey I may be completely wrong and being completely unfair to you) to defer completely to this administration; to give it the benefit of the doubt when it has proven time and again that it is no longer entitled to the benefit of the doubt; to hold back on opining on a particular issue because we don't have all the "facts" when the reason we don't have the facts is because they are being unjustifiably held back, etc. These are all issues for another day, but the fact is that this administration has challenged everything I believed in and assumed about our government and the Presidency until around 2004. It seems to me (again maybe I'm wrong and being unfair) that you almost always conduct a very careful analysis which just so happens to always come out, regretfully, on the side of this administration, or you will say you cannot form an opinion. Even when you disagree with the administration -- e.g., Gonzalez and whether he should resign -- you then go out of your way on other occasions to prove critics wrong on particular, minor-in-the-scheme-of-things points (e.g. whether Gonzalez technically committed perjury by certain particular statements; regardless of whether he did or not, he clearly mislead Congress and has shown an absolute contempt (not the legal term of art) for it, and has ruined, yes ruined, the credibility of DOJ and all USA's and AUSA's across this nation). I used to think that if the President said something or if his administration said something, they were actually doing so in good faith and believed what they were saying. I no longer believe that to be the case and it has been a real wake-up call for me and has changed many of the views I have had about the entire structure of our government and constitutional system.]
8.20.2007 6:12pm
Dave N (mail):
Crazy Train,

I am not sure "everyone" knows about the case and controvery requirement. And my greater point had to do with the "as applied" even after a state "opts in"--because I see that as creating conflicts between the D.C. Circuit and the various Circuit Courts of Appeal.

As I said in a previous post, I think the case law eminating from 2254 habeas cases is so much to the government's benefit that I see little utility in advocating that my state attempt to "opt in" at this point and much utility in keeping our capital cases under 2254.
8.20.2007 6:28pm
OrinKerr:
maybe I'm wrong and being unfair....

CrazyTrain, we agree again! This is amazing!

Seriously, it sounds like there is some serious perception bias going on. Based on your comments over the years, it's been clear that you have Bush-like confidence in your views. So when I agree with you, it's noting worth noting; I am just recognizing the obvious truth. But when I disagree with you, it really sticks out as being being deeply and outrageously wrong. (Thus when I called on Gonzales to resign, what really stuck out in your mind is that I later defended Gonzales against some weak charges even while sticking with my call for him to resign.) It sounds like I can't win unless I agree with you most or all of the time.
8.20.2007 7:02pm
OrinKerr:
Oh, and I should also add, obviously I'm just guessing based on your blog comments: I have no idea who you are, or if your comment persona is like you in real life.
8.20.2007 7:06pm
CrazyTrain (mail):
it's been clear that you have Bush-like confidence in your views

Another reason why I am not qualified to be the President of the United States.

I have no idea . . . if your comment persona is like you in real life

I think it's safe to assume that people act differently when posting anonymously than when dealing with people in "real life."
8.20.2007 8:52pm
Kent Scheidegger (mail) (www):
"But giving the power to decide when a fast track is warranted to an interested party like Mr. Gonzales is a curious way to run a justice system."

The problem with the statute as originally enacted was precisely that the decision was being made by an interested party. The very court that was going to be subject to the time limits got to decide whether they applied. Surprise, surprise, they never did, not even in the Arizona case where the state had met every requirement actually in the statute.

USDoJ is not an interested party in a state criminal action. The fact that the AG acts as a prosecutor in federal criminal cases does not disqualify him as the initial certification authority in this one, in which the United States is not a party.

California adopted legislation to qualify in 1997. With the ultimate decision now in the neutral forum of the D.C. Circuit, perhaps it will get the benefit Congress promised in 1996.
8.20.2007 9:54pm
Kovarsky (mail):
kent,

consistent with your wonderfully predictable disposition on every single habeas case, you've managed to completely misrepresent "the benefit congress promised." i'm not sure what you mean by that, other than potentially that congress promised the powell committee recommendations. indeed, the entire purpose of the powell committee quid pro quo WAS TO GET THE STATES TO PROVIDE THE PROCEDURAL PROTECTIONS IN THE 2260'S. the fact that they have to relax the requirements for the states to get the benefits suggests precisely the opposite of the fact that the 104th congress is having its druthers.

i'm looking forward to your amicus brief.
8.20.2007 10:41pm
Kent Scheidegger (mail) (www):
"The benefits Congress promised" refers to the benefits in the statute. My comment could not possibly have misrepresented them, given that I made no representation at all. If you don't know what they are, try reading the statute.

The substantive requirements for qualification have not been relaxed in any material way by the amendment to the statute. The essential elements are the same as they were before. The change is in the decision-maker.
8.21.2007 12:08am
Kovarsky (mail):
kent,

i'll leave your "read the statute" comment alone, but suffice it to say that your attempt to cast this whole conversation as a mere change in who implements the standard is silly. the entire point of the DoJ taking over the unitary review procedures was because the courts were requiring too stringent a standard. nor is it particularly persuasive to ruefully remark that "[perhaps california will get] the benefit congress promised in 1996" and later pretend that you did not mean to imply that there was something improper about the court's failure to certify a state procedure.

lee
8.21.2007 12:40am
Kent Scheidegger (mail) (www):
Kovarsky, you are incoherent as usual. Nothing in my last comment "pretend[s] that [I] did not mean to imply that there was something improper about the court's failure to certify a state procedure." The Spears decision certainly was erroneous, and that was why Congress felt the need to take the decision away from the Ninth Circuit in particular.
8.21.2007 1:35am
Habeas Clerk:
Kent,

The US Attorney General is not an "interested" party in the technical sense, but he hardly has the apperance of a neutral decision-maker. If the problem is that the courts that have a stake in the outcome have been deciding whether a state qualifies for opt-in status, why not just place the decision in the DC Circuit, which doesn't hear state habeas cases, and eliminate the AG?

Also, it seems to me that the stumbling block for the states has not been whether they've established systems for the appointment and compensation of counsel in post-conviction proceedings, as most have, but whether those standards are acutally applied fairly and consistently. In other words, it is not a facial problem, but an as-applied problem. Isn't the whole point of the quid pro quo that the states would not only have systems in place, but that those systems would result in a thorough, complete, and fair post-conviction adjudication? Perhaps some states should have already been certified even under an as-applied challenge, but my understanding is that question has now been taken off the table under the new certification regime. 2265(a)(3).
8.21.2007 12:30pm
Kovarsky (mail):
kent,

do you have a point, or a response, or anything? if not, you may resume your practice of producing "o its kent scheidegger again" amicus briefs for federal courts. talking to you is like a shell game, and i'm done playing it.
8.21.2007 1:13pm
neilalice:
I really don't see what all the fuss is about. No action of any executive officer, state or federal, will have any effect on any judicial officer, particularly a federal court.

Let's assume for argument's sake that some state somewhere actually meets the certification requirements (it doesn't matter who does the certifying). Which federal court is actually going to follow the new time lines? More to the point, who's is going to hold the judges accountable when, not if, they don't meet the new time lines?

No one.
8.21.2007 2:42pm
neilalice:
Habeas Clerk

The federal judiciary is not a "neutral-decision maker" when it comes to matters of federalism and separation of powers. The judges like to pretend to be neutral, but they have a vested interest in ruling in favor of individuals at the expense of the legislative and executive branches of government.

With habeas, as you no doubt know, any ruling in favor of a petitioner is a ruling in favor of federal power at the expense of a state's police and judicial powers. Federal clerks have incentives to rule in favor of individuals because it gives them and their judges more power against the executive and legislature (the states have been afterthoughts for more than 50 years).

It's not just a coincidence that so-called conservative judges (like Warren, Blackmun, Stevens, Souter and now maybe Kennedy) invariably seem to get more so-called liberal. After years on the bench, they realize that rulings in favor of the little guy expand their power.

As for your question why the DC Circuit couldn't do the certifying, I suppose they could, and it would certainly be better than having the geographic circuits do it. But I wouldn't like it because I don't like anything that overtly increases the power and role of judges -- they do very well on their own. More to the point, it's not the avenue that Congress chose when it amended the law.
8.21.2007 2:56pm
neilalice:
Oh, and Judge Reinhardt has weighed in with his opinion.
8.21.2007 3:19pm