More Unrest Over Rule for Death-Row Counsel

     SAN FRANCISCO (CN) - The future of how states appoint and compensate counsel for death-row prisoners remains unclear after a federal judge identified lingering procedural issues.
     The case involves procedural incentives afforded to states that guarantee death-sentenced prisoners competent counsel and reasonable litigation resources in federal review of state capital convictions, under Chapter 154 in Title 28 of the U.S. Code. Incentives include significantly shortening the statute of limitations for federal habeas corpus cases and expediting such proceedings.
     In 2005, the Patriot Act amended Chapter 154 by giving the attorney general control over certifying the mechanisms that a state uses to appoint and compensate counsel for inmates scheduled for execution. The change also allegedly holds the attorney general to the regulatory requirements of the Administrative Procedure Act (APA).
     Habeas Corpus Resource Center and Public Defender for Arizona sued the Justice Department and Attorney General Eric Holder over a rule issued last year that they say does not require states to provide any information that they have mechanisms in place to ensure that inmates receive quality, fairly compensated attorneys.
     U.S. District Judge Claudia Wilken quickly blocked implementation of the rule with a temporary restraining order and then ordered the Justice Department to retool the rule's "fatal defects."
     After both sides claimed victory and asked for summary judgment, Wilken ruled Thursday that the government had followed APA requirements for giving sufficient notice of the rule change, and by adequately responding to public comments.
     But the certification process leaves the public, rather than Holder, in charge of objecting when states fail to provide death-row attorneys or pay for them, Wilken said. She found the rule "procedurally deficient" under the APA, and also slammed the Justice Department for certifying Arizona's plan without taking public comment before the new rule even when into effect.
     "In light of the certification procedure set out in the final rule, specifically the bare requirement of a 'written request' and a single opportunity for public comment based on that potentially barebones request, ex parte communications severely interfere with the public's ability to make informed comment on any application for certification," Wilken wrote. "Defendants argue that the final rule provides that the Attorney General may publish subsequent notices providing a further opportunity for comment, but there is no requirement that the Attorney General publish anything but the initial written application. Ex parte communication excludes interested parties from offering input regarding the validity and accuracy of such undisclosed communications and documents."
     Wilken ordered DOJ to "remedy the defects identified in this order in any future efforts to implement the procedure prescribed by Chapter 154" and closed the case.