Representation in Federal Habeas (1988)

Short Name: Representation in Federal Habeas
Year Adopted: 1988
Meeting Where Adopted: Mid-Year
Policy Number: 1988 MY 125
Subjects: Death Penalty, Post-Conviction/Habeas Corpus, Appointment of Counsel, Counsel Compensation

Resolution Text:

BE IT RESOLVED, That the American Bar Association supports full utilization of the provisions pertaining to representation in federal habeas corpus death penalty proceedings contained in the Criminal Justice Act Revision of 1986 and the Criminal Justice Act Guidelines as amended in 1987 by the Judicial Conference of the United States and acknowledge the efforts of the federal judges to implement these provisions and guidelines.

BE IT FURTHER RESOLVED, That the American Bar Association urges each federal district and circuit court to adopt and each federal circuit judicial council to approve a plan for providing representation in federal habeas corpus death penalty proceedings which includes:

1) appointment and compensation of counsel, and of expert legal consultants if requested by counsel, in every federal habeas corpus death penalty case whether or not the petition was prepared, or counsel previously appeared, pro bono;

2) application to the Judicial Conference of the United States for approval of compensation of appointed attorneys at rates of up to $75 per hour in jurisdictions where such higher rates are necessary to obtain adequate representation;

3) uniformly fair exercise by federal district judges of their authority to recommend and by appropriate circuit judges to approve waivers of the case compensation maximum of $750 for attorneys' fees and payment for each hour reasonably spent on the case and waivers of the compensation limit of$1,000 for investigative, expert and other services, including legal consultant services, and payment for all such services reasonably incurred for the case; and routine reimbursement for all expenses reasonably incurred during representation, so as to assure that qualified attorneys will accept such appointment;

4) procedures for requesting and authorizing interim payments of fees and expenses for attorneys and experts in protracted or complex cases;

5) the appointment for federal habeas corpus proceedings of eligible attorneys who provided representation in the state post-conviction proceedings for the same case, unless the petitioner objects for cogent reasons, there is evidence of a conflict, or other good cause appears for appointing new counsel to the case;

6) except in unusual circumstances, the appointment of two attorneys in every federal habeas corpus death penalty case as counsel of record;

7) pre-assignment screening of attorneys considered for appointment to such cases to assure that only trained and experienced attorneys are appointed; and

8) support for creation of state and regional centers to provide expert advice and assistance to appointed counsel in federal habeas corpus death penalty litigation; advice to appointed counsel of their availability; and encouragement for counsel to avail themselves of such services whenever appropriate.

BE IT FURTHER RESOLVED, That the American Bar Association encourages each federal district and circuit court to adopt and each federal circuit court counsel to approve such amendments to its local Criminal Justice Act plan as may be necessary to carry out the concepts and policies contained herein.

BE IT FURTHER RESOLVED, That the American Bar Association further encourages the federal courts developing and carrying out such Criminal Justice Act implementation plans to consult extensively with appropriate state criminal justice leaders to ensure the maximum extent of coordination and consistency concerning the standards and procedures governing appointment of counsel in state and federal post-conviction proceedings involving death penalty cases.

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