New Death-Row Counsel Rule Blocked Indefinitely

     SAN FRANCISCO (CN) – Changing the rule for the appointment and compensation of counsel for death-row prisoners must wait on the resolution of claims that the rule suffers from “fatal defects,” a federal judge ruled.
     The final rule regarding Certification of State Capitol Counsel Systems was already delayed from its Oct. 23 effective date with a temporary restraining order issued by U.S. District Judge Claudia Wilken.
     Her latest ruling handed down Wednesday delays the rule indefinitely as the Habeas Corpus Resource Center and Public Defender for Arizona pursue their lawsuit against the U.S. Department of Justice and U.S. Attorney General Eric Holder.
     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 the Habeas Center alleges 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.
     Wilkin’s preliminary injunction prohibits the Justice Department and Holder from putting the rule into effect.
     “Compared to the harm faced by plaintiffs, defendants stand to face little, if any, harm if the Final Rule does not go into effect immediately,” she wrote. “The Patriot Act amendments were passed in 2005. After retracting their 2008 proposed rule in 2010, defendants only recently attempted to revive it. An additional delay pending resolution of this lawsuit will not prejudice them. Public interest likewise favors maintaining the status quo while the legality of defendants’ rule is determined.”

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