Justices Won’t Revive Challenge to Death-Row Attorney Rule

(CN) – The federal government can advance changes to a rule about the appointment of counsel for death-row inmates that could fast-track the appeals process, after the Supreme Court declined to stay the Ninth Circuit’s dismissal of a challenge to the rule.

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.

Habeas Corpus Resource Center and Arizona’s public defender’s office sued the Justice Department and the Attorney General over a rule issued in 2013 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 found for the legal organizations in 2014 and ordered the Department of Justice to remedy the rule’s alleged defects.

But the Ninth Circuit vacated Wilken’s ruling last year and remanded the case to the district court with orders to dismiss it, finding that the plaintiffs had no standing to challenge proposed changes to the federal rule for the appointment and compensation of counsel for death-row prisoners.

“Assisting and counseling clients in the face of legal uncertainty is the role of lawyers, and, notably, the defender organizations have not cited any authority suggesting that lawyers suffer a legally cognizable injury in fact when they take measures to protect their clients’ rights or alter their litigation strategy amid legal uncertainty,” Circuit Judge Carlos Bea wrote for a three-judge panel. (Emphasis in original.)

Attorney Marc Shapiro, who represented the Habeas Corpus Resource Center and Arizona’s public defender’s office, said the Ninth Circuit’s ruling “enables states to pursue fast-tracked federal habeas review without any assurance that individuals have been appointed competent state counsel or that they received the requisite funds necessary to demonstrate their convictions and sentences were properly obtained.”

“The fallout for our clients – two government entities with fixed budgets that are statutorily charged with protecting the rights of death row prisoners – cannot be overstated,” Shapiro said.

On Friday, the U.S. Supreme Court issued a one-page order denying a request to stay the Ninth Circuit’s ruling in the case, essentially upholding its dismissal. The high court did not comment on its decision to deny a stay.

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