August 30, 2007
Media Contact: Stephanie Ortbals-Tibbs
American Bar Association Calls Proposed Rule on Death Penalty Appeals
"Deeply and Fundamentally Flawed"
Association Outlines Serious Concerns with Department of Justice Plan to
Certify State Capital Systems
WASHINGTON, D.C. -- The American Bar Association is taking issue with
proposed regulations to implement a statute that offers states a drastically
streamlined habeas corpus review in death penalty cases in exchange for
improvements in their post-conviction defense process. In comments filed
Aug. 25 with the Department of Justice, the ABA said the proposed rule
ignores key parts of the authorizing legislation and fails to follow what
"At its core, the proposed rule fails to abide by this compromise and would
allow states to obtain streamlined review without ensuring that capital
defendants receive competent counsel" in post-conviction proceedings, the
ABA comments stated.
The ABA filed the comments in response to proposed rulemaking regarding the
Certification Process for State Capital Systems. The association'
included what it believes is a disregard for significant aspects of the
implementing legislation. Specifically, the ABA said the rules as proposed
raise a number of deep concerns, because they:
- Could result in the appointment of any counsel, rather than
expressly calling for competent counsel to represent capital defendants in
- Ignore statutory requirements that make it clear which
defendants would face streamlined review.
- Fail to establish uniform standards for states seeking
- Allow for ex parte communications between the attorney general
and the state applicant, and fail to provide for public scrutiny of public
- Create a "content-free" application process for states.
- Lack safeguards that enable state decertification.
"The proposed rule proscribes no content for a state application other than
an 'attestation' that the applicant is an 'appropriate state official' and
an 'affirmation' that the state has provided notice of the request to the
chief justice of the state's highest court," the ABA comments noted. "By
opting to fail to specify the requirements of the application, the Justice
Department has proposed an unworkable mechanism that will result in
arbitrary and capricious agency action. At a minimum, the proposed rule
should require the state applicant to proffer some evidence that the state's
mechanism actually results in the appointment of competent post-conviction
counsel to indigent capital defendants (such as a list of the proposed names
of qualified attorneys who are eligible to be appointed), the standards of
competency for the appointment of counsel (so that the standards for
selection of eligible counsel are clear), and the mechanism for compensation
and expense reimbursement for counsel."
The association also recommended that the ABA's Guidelines for the
Appointment and Performance of Counsel in Death Penalty Cases be
incorporated into the evaluation process in order to add objectivity to the
A full copy of the ABA's comments is available upon request.
Source : ABA