July 01, 2011

ABA Urges Changes in Proposed Capital Counsel Rule

The ABA urged the Department of Justice last month to revise a proposed rule intended to implement the certification process for capital counsel systems at the state level because the proposal would not assure that states that receive certification have mechanisms in place to provide the appointment of competent post-conviction counsel.

The certification process, established by Section 507 of the USA PATRIOT Improvement and Reauthorization Act of 2005, requires states to make significant and meaningful improvements to their counsel systems providing legal representation to indigent death-sentenced prisoners (including ensuring the quality of appointed counsel) in order to be entitled to the benefits of streamlined review in federal habeas corpus proceedings.

In a June 1 letter to Attorney General Eric H. Holder Jr., ABA President Stephen N. Zack maintained that the proposed rule would lead to improper certification by the attorney general because it “fails to provide substantive, meaningful criteria for evaluating whether a state’s mechanism will actually lead to the appointment of competent counsel.”

Comments submitted to the DOJ by the ABA mark the third time since 2006 that the association has voiced similar concerns about proposed rules to implement Section 507.

The current proposed rule, according to Zack, “raises serious concerns about the quality of representation for capital defendants, the fairness of death penalty proceedings, and the relationships between the federal and state courts in habeas corpus proceedings – issues that long have been and are today of vital concern to the ABA.” The ABA comments emphasize that even though the ABA has no position on the constitutionality of the death penalty or whether Section 507 is good policy, the association is dedicated to the promotion of a fair and effective system for the administration of justice.

The comments state that the proposed rule does not satisfy the mandate for the appointment of competent counsel because it fails to require states to: appoint post-conviction defense teams; meet well-recognized standards for the appointment of competent post-conviction counsel; adopt meaningful performance standards; provide funds for the training, professional development and continuing education of post-conviction counsel; consider defense teams’ existing workload before making appointments; and provide for the timely appointment of counsel.

The ABA recommends that the proposed certification criteria be revised to require compliance with the ABA Guidelines for the Appointment and Performance of Counsel in Death Penalty Cases, originally developed in 1989 and expanded and updated in 2003.

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