Death-Row Inmates Challenge Post-Conviction Rules

PHOENIX (CN) — Death-row inmates are ill served by the way states approve attorneys for post-conviction defense teams, 11 Arizona prisoners and the state’s Office of the Federal Public Defender claimed Monday in suing the Department of Justice.

At issue are federal rules governing how states provide death row inmates with adequate representation. The rules allow a quick process with little oversight, which gives inmates curtailed timelines for filings, no voice in rulemaking, and leaves them at the mercy of states, which can simply write a letter saying the process is fine, according to the 37-page complaint.

Once the Justice Department approves the states’ processes, the timeline for habeas corpus proceedings is shortened and judicial review of state judgments is curtailed, according to the complaint, which challenges the rules as substantively and procedurally deficient.

Considering the states’ process certifications as “orders,” not rules, shortens the length of time allowed to file some petitions; states do not have to adequately explain their process for certifying attorneys; the rulemaking process does not require meaningful public input; and the rules allow improper communication between state and federal officials, lead plaintiff Steve Boggs says.

Not requiring states to fully explain how they decide attorneys are qualified unfairly puts the burden on defendants to show that the process is inadequate, rather than requiring the states to show it was not — a clear violation of the intent of Congress, the complaint states.

“A state applying for certification must bear the burden of demonstrating that it meets the statute’s requirements, as Congress clearly intended, but the regulations improperly leave it to the public to demonstrate that the state does not,” the plaintiffs say.

For example, the Arizona attorney general submitted only a 3-page letter stating the process there is adequate, despite numerous public comments decrying the process, including from the plaintiffs, going unaddressed, the lawsuit says.

It takes specific aim at the Antiterrorism and Effective Death Penalty Act of 1996, Clinton-era legislation:

“At bottom, the Attorney General is free under the regulations to arbitrarily disregard relevant comments without explanation, thus depriving the public of its right to understand the basis for agency action affecting important legal rights and further frustrating a reviewing court’s ability to evaluate the Attorney General’s decisions,” the complaint states.

In short, the rules allow the U.S. attorney general far too much discretion, the plaintiffs say.

“The regulations create a procedurally and substantively inadequate procedure by which the Attorney General may certify the adequacy of a state’s mechanism for appointing counsel with little public input and few constraints on his discretion,” they say.

The Arizona federal defender’s office represents 77 indigent death-row prisoners in federal habeas or related proceedings, including 51 prisoners sentenced to death, according to the lawsuit.

The rules stem from a 2005 USA Patriot Act reauthorization that gave the U.S. attorney general the authority to determine whether states have adequate mechanisms to appoint and fund attorneys for indigent death-row inmates. Since then, with little public input and no required response to comments, the rules have been updated twice, the lawsuit says.

In 2007-08 and again from 2011-13, numerous interested parties, including the federal defenders office in Arizona, offered comments to the Justice Department, but the rules do not require Justice to respond, the lawsuit says.

The plaintiffs are represented by Darren Teshima and other attorneys with Orrick, Herrington and Sutcliffe of San Francisco and the Office of the Federal Public Defender for the District of Arizona.

They ask the court to set aside the states’ certification processes and require them to address the deficiencies cited in the complaint.

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