Federal Judge Blocks New|Death-Row Counsel Rules

     SAN FRANCISCO (CN) – A rule change for the appointment and compensation of counsel for death-row prisoners cannot take effect Wednesday as planned, a federal judge ruled.
     The final rule regarding Certification of State Capital Counsel Systems was supposed to take effect Oct. 23, but U.S. District Judge Claudia Wilken delayed enforcement until at least Nov. 1 with a temporary restraining order Friday.
     States that guarantee death-sentenced prisoners competent counsel and reasonable litigation resources are provided with procedural incentives in federal review of state capital convictions, under Chapter 154 in Title 28 of the U.S. Code. Incentives include the statute of limitations for federal habeas corpus proceedings to be greatly shortened and expedited.
     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).
     On Sept. 23, 2013, the Justice Department issued a new rule that led the Habeas Corpus Resource Center and Public Defender for Arizona to file suit.
     Among other defects, the new rule allegedly does not require a state requesting certification to provide any information as to the state’s mechanism for assuring that it will provide competent counsel and adequate compensation and litigation expenses. A state essentially need only assert that it is compliant with the requirements, according to the complaint.
     The change has “an inherent bias and appearance of impropriety from having capital prosecutors shape a rule and conduct the factual inquiry that affects the rights of capital prisoners to effective defense counsel and their ability to seek post-conviction relief,” according to the complaint (emphasis in original).
     In issuing the restraining order Friday, the judge found that the certification process is likely arbitrary and capricious in several ways.
     Noting that Arizona has already applied for certification and California could apply at any time, Wilken also deemed the restraining order necessary to prevent irreparable harm.
     “There can be little doubt that the legal uncertainty of the retroactive effect of the new limitations period will severely harm plaintiffs, leaving them in protracted legal limbo,” Wilken wrote.
     If the rule went into effect, the groups “would confront a tumult of critical choices that affect their death-sentenced clients,” the decision states. “Plaintiffs do not court hyperbole when they deem the risk permitting a potentially flawed regulation to proceed an ‘unconscionable gamble.'”
     The groups are likely to succeed on their claim that the attorney general failed to provide adequate notice of the Final Rule under the APA “because he stated, for the first time in the final rule, that the certification decisions are not subject to the rulemaking provisions of the APA,” according to the ruling.
     As such, interested parties could have been denied the chance to comment on the attorney general’s view of the certification process, Wilken said.
     Supporting the claim that the rule is arbitrary, the challengers showed that it does not provide substantive criteria of how states can satisfy the requirements to become certified.
     The rule “allows a state to be certified if the competency standards ‘reasonably assure a level of proficiency appropriate for State post-conviction litigation in capital cases,'” according to the nine-page ruling. “This catch-all exception is broad and vague.”
     The rule also does not indicate whether applicable standards established by the U.S. Supreme Court will guide the attorney general’s decision on certification, Wilken said.
     “Last, the Final Rule fails to address the nature and effect of ex parte communication between Attorney General Holder and the state officials,” she wrote. “As plaintiffs note, even before the final rule went into effect, Attorney General Holder and the Arizona Attorney General commenced a process of certification without notifying interested parties. The final rule’s failure to articulate transparent and specific parameters governing the attorney general’s ex parte communications with state officials may leave plaintiffs and the public in the dark, depriving them of the opportunity to offer meaningful opposition.”
     The temporary restraining order expires on Nov. 1. The Justice Department and Holder have six days to show why a preliminary injunction should not be issued.

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