Comment Of Senator Patrick Leahy On Rescission Of Rule On The Certification Process For State Capital Counsel Systems

On November 23, the Department of Justice announced that it is rescinding regulations implementing a provision giving the Attorney General, rather than the courts, decision-making authority over whether states can successfully “opt in” to a compressed habeas process in death penalties.  The regulations, which were finalized in December 2008 under Attorney General Mukasey, gave the Attorney General almost unfettered discretion to allow states to opt in, whereas courts had previously demanded that states establish that they have an effective system of capital representation before allowing states to opt in.  The Bush administration implemented the regulations despite strong concerns from Senator Leahy and others.  A court immediately stayed the implementation of the recommendations, finding that there had not been adequate review of comments submitted in connection with the regulations.

“Attorney General Holder and the Justice Department have reversed eleventh-hour regulations issued by the Bush administration that could have allowed states to reduce key legal process for defendants subject to the death penalty, without guaranteeing a system that provides adequate representation for capital defendants.  In 2009, I joined with Senator Kennedy and Senator Feingold to ask Attorney General Holder to review the regulations.  I am pleased that this troubling Bush-era policy has been reversed.  Our Constitution requires that defendants have competent counsel.  This is a core right of all Americans and it is nowhere more critical than in capital cases.”

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