August 21, 2020

ABA asks federal court to reject certification of Arizona to expedite death penalty appeals

CHICAGO, Aug. 20, 2020 — The American Bar Association filed an amicus brief today with the U.S. Circuit Court of Appeals for the District of Columbia, supporting a challenge to the U.S. Department of Justice’s determination that the state of Arizona met the criteria to certify its system for providing counsel in death penalty cases. The determination gives the state the authority to accelerate and limit the scope of post-conviction review in capital cases.

Earlier this year, Attorney General William Barr certified, retroactive to 1998, that Arizona had developed appropriate mechanisms in its system for appointing post-conviction counsel for capital defendants. The certification requires states to have a system for ensuring capital defendants receive adequate and effective post-conviction counsel in exchange for shortening the statute of limitations for federal review of state court judgments and to reduce federal courts’ ability to review certain aspects of state judgments.

But the Office of the Federal Public Defender for the District of Arizona challenged that certification, citing, among other concerns, inadequate post-conviction experience requirements for counsel and insufficient compensation of court-appointed attorneys in capital cases. The ABA brief supported the public defenders’ petition.

The ABA brief recalled that the ABA Death Penalty Due Process Review Project identified in a 2006 assessment of Arizona’s death penalty administration “serious problems” with Arizona’s system. The brief also identified several current aspects of Arizona’s system that undermine the safeguards required for certification. The deficiencies include failing to require post-conviction experience, untimely appointments of counsel, chronic and widespread under-funding, and lack of a statewide defender office. Many of the 2006 problems remain unaddressed today, the brief said, and should prevent certification that will erode the due process rights of capital defendants.

The brief noted the ABA does not take a position on the death penalty, other than to say that the right to assistance of effective counsel and the preservation of due process, or habeas corpus, are essential elements of the fair and constitutional administration of the death penalty.

The brief in Office of the Federal Public Defender for the District of Arizona, v. William P. Barr is available here. The ABA was represented on the amicus brief by the law firm of Arnold & Porter Kaye Scholer LLP. 

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