June 01, 2014

Update on Opt-In Rule: Preliminary Injunction Prevents Implementation

Robin M. Maher, Director

Under the Anti-Terrorism and Effective Death Penalty Act of 1996, states that guarantee death-sentenced prisoners competent counsel and reasonable litigation resources are provided with procedural incentives in federal review of state capital convictions under Chapter 154. Before receiving these incentives, each state must be “certified” as meeting Chapter 154’s requirements for counsel and resources. But none of the death penalty states that sought certification in prior years were successful because federal courts found that the systems used by the states to appoint and compensate counsel were insufficient. Then in 2005, Congress reauthorized the Patriot Act and amended Chapter 154 by giving the United States Attorney General the authority to decide which states qualified for certification. The Department of Justice drafted a Rule to implement the new provision, but concern expressed by the ABA and many others regarding the fairness of the process, along with aggressive litigation efforts, prevented the Rule from taking effect.

Delaying implementation was a priority for the defender community. In states that are certified, the statute of limitations for federal habeas corpus proceedings in federal court is greatly shortened, federal habeas corpus proceedings are greatly expedited, and judicial review of state judgments is sharply curtailed. For states with longstanding problems, speeding up an already broken death penalty system promises to have devastating effects on the prisoners in those jurisdictions. Defenders were also concerned about the apparent conflict of interest created by permitting the country’s top prosecutor, the Attorney General, to assess and certify the state’s capital defense function.

The Department of Justice issued a new, revised Rule on September 23, 2013. But the latest iteration failed to cure several serious defects. For example, states that apply for certification need not provide any detailed information about their mechanism for appointing and compensating counsel, and there are no meaningful standards for counsel competency. This means that a state can allege compliance despite overwhelming evidence to the contrary, as Texas has done. The current Rule also does not permit the meaningful participation of defenders to challenge the state’s assertions.

The California Habeas Corpus Resource Center and the Office of the Federal Public Defender for the District of Arizona have now sued the Department of Justice and U.S. Attorney General Eric Holder seeking to again delay the effective date of the Rule until resolution of the defects. A temporary injunction has been in place since last December, preventing any states from being certified. That has not, however, prevented several states from filing applications for certification with DOJ. The appeal of the preliminary injunction is pending in the Ninth Circuit, and a motion for summary judgment is pending in the District Court, with a hearing scheduled for the end of July. The Rule has an intended effective date of October 23, 2014.

Robin M. Maher, Director