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An attempt by the Justice Department to speed up the death penalty process survived a challenge in the Ninth Circuit last week. Under a federal program, states that provide certified, competent representation to capital prisoners can have those prisoners' federal habeas petitions "fast-tracked," dropping the time prisoners have to file habeas petitions in half, reducing delays before the guillotine falls.
Two capital defense providers sued, arguing that the new regulations made it impossible to tell if state programs would be certified, making it difficult for them to protect death row inmates' rights. But those concerns, the Ninth Circuit ruled, aren't sufficient enough to give them standing.
Death Row Fast Track
Federal law allows the fast-tracking of federal habeas petitions in capital cases, so long as indigent prisoners are given competent representation for their petition. (Unlike the right to counsel at trial, there is no constitutional entitlement to postconviction representation for indigent prisoners.)
When fast-tracking occurs, the time available to file a habeas petition drops from one year to six months, while imposing deadlines on court responses to the petition.
Before states can take advantage of fast-tracking, however, the attorney general must certify that the state has "established a mechanism for the appointment, compensation, and payment of competent counsel in State postconviction proceedings."
The attorney general adopted procedures for state certification in 2013, leading to a lawsuit by California's Habeas Corpus Resource Center and the Office of the Federal Public Defender for the District of Arizona, two organizations that provide attorneys for death row inmates.
Legal Uncertainty Isn't a Recognizable Injury
The vagueness of those regulations, the organizations argued, makes it impossible to predict whether and how the Attorney General will certify capital-counsel mechanisms. Since certification can have retroactive effect, capital prisoners who wait too long to file a habeas corpus petition could find themselves out of luck, should the statute of limitations be reduced. As a result of this uncertainty, the organizations claim, they must make "immediate strategic and resourcing decisions" over how to best preserve their clients' rights.
That "confusion," the district court had ruled, was a legally cognizable injury sufficient enough to confer standing. The Ninth Circuit disagreed. The Ninth Circuit acknowledged that the fast track program, and the shortened statute of limitations, may adversely affect prisoners and alter the organization's strategic considerations. But uncertainty about how the regulations will be implemented, the court found, is not the concrete, particularized injury necessary for standing.
"Assisting and counseling clients in the face of legal uncertainty is the role of lawyers," the Ninth Circuit reminded the Habeas Corpus Resource Center and Federal Public Defender. "Taken to its logical conclusion, this theory of injury would permit attorneys to challenge any governmental action or regulation when doing so would make the scope of their clients' rights clearer and their strategies to vindicate those rights more easily selected."
Fast-track isn't a sure thing just yet, however. Both organizations have said they will seek en banc review of the Ninth Circuit panel's decision.