[Federal Register Volume 75, Number 225 (Tuesday, November 23, 2010)]
[Rules and Regulations]
[Pages 71353-71355]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-29329]
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DEPARTMENT OF JUSTICE
28 CFR Part 26
[Docket No. OJP 1464; AG Order No.]
RIN 1121-AA76
Office of the Attorney General; Certification Process for State
Capital Counsel Systems; Removal of Final Rule
AGENCY: Department of Justice.
ACTION: Final rule.
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SUMMARY: Pursuant to the USA PATRIOT Improvement and Reauthorization
Act of 2005, the Department of Justice promulgated a final rule to
implement certification procedures for States seeking to qualify for
the special federal habeas corpus review procedures in capital cases. A
Federal district court issued an injunction requiring the Department to
provide an additional public comment period and publish a response to
any comments received during that period. The Department then solicited
further
[[Page 71354]]
public comments. By this rule, the Department is removing the December
11, 2008 regulations. The Department will issue new regulations on this
subject by separate rulemaking.
DATES: Effective Date: This rule is effective December 23, 2010.
FOR FURTHER INFORMATION CONTACT: Lisa Ellman, Office of Legal Policy,
at (202) 514-4601 (not a toll-free number).
SUPPLEMENTARY INFORMATION:
Overview
Chapter 154 of title 28, United States Code, makes special
procedures available to a State respondent in Federal habeas corpus
proceedings involving review of State capital convictions, but only if
the Attorney General has certified ``that [the] State has established a
mechanism for providing counsel in postconviction proceedings as
provided in section 2265,'' and if ``counsel was appointed pursuant to
that mechanism, petitioner validly waived counsel, petitioner retained
counsel, or petitioner was found not to be indigent.'' 28 U.S.C.
2261(b). 28 U.S.C. 2265(a)(1) provides that, in order for a State to
qualify for the special habeas procedures, the Attorney General must
determine that ``the State has established a mechanism for the
appointment, compensation, and payment of reasonable litigation
expenses of competent counsel in State postconviction proceedings
brought by indigent [capital] prisoners'' and that the State ``provides
standards of competency for the appointment of counsel in [such
proceedings].''
Chapter 154 has been in place since the enactment of the
Antiterrorism and Effective Death Penalty Act of 1996 (Pub. L. 104-
132), but was amended by section 507 of Public Law 109-177, the USA
PATRIOT Improvement and Reauthorization Act of 2005 (``the Act'').
Prior to the Act, the determination of a State's eligibility for the
special procedures had been left to the Federal habeas courts. The 2005
Act amended, inter alia, sections 2261(b) and 2265 to assign
responsibility for chapter 154 certifications to the Attorney General
of the United States, subject to de novo review by the Court of Appeals
for the District of Columbia Circuit.
Rulemaking History
Section 2265(b) directs the Attorney General to promulgate
regulations to implement the certification procedure. To fulfill this
mandate, the Department of Justice published a proposed rule in the
Federal Register on June 6, 2007, that proposed adding a new subpart
entitled ``Certification Process for State Capital Counsel Systems'' to
28 CFR part 26. 72 FR 31217 (June 6, 2007). The comment period ended on
August 6, 2007. The Department published a notice on August 9, 2007,
reopening the comment period, 72 FR 44816, and the reopened comment
period ended on September 24, 2007. The final rule establishing the
chapter 154 certification procedure was published on December 11, 2008,
73 FR 75327, with an effective date of January 12, 2009.
The U.S. District Court for the Northern District of California
preliminarily enjoined the Department ``during the pendency of these
proceedings from putting into effect the rule * * * without first
providing an additional comment period of at least thirty days and
publishing a response to any comments received during such period.''
Habeas Corpus Resource Center v. United States Dep't of Justice, No.
08-2649, 2009 WL 185423, at *10 (N.D. Calif. Jan. 20, 2009). Further
public comment was solicited, with the comment period closing on April
6, 2009. 74 FR 6131.
As the Department reviewed the submitted comments, it considered
further the statutory requirements governing the regulatory
implementation of the chapter 154 certification procedures. The
Attorney General has determined that chapter 154 reasonably could be
construed to allow the Attorney General greater discretion in making
certification determinations than the December 11, 2008 regulations
allowed. For instance, chapter 154 reasonably could be construed to
permit the Attorney General to determine, within certain bounds,
whether a state's competency standards and counsel appointment
mechanism (including compensation standards) are adequate to achieve
chapter 154's objectives.
Therefore, the Department published a notice in the Federal
Register on May 25, 2010, proposing to remove the December 11, 2008
regulations pending the completion of a new rulemaking process, during
which the Department will further consider what standards and
procedures are appropriate. 75 FR 29217. The comment period closed on
June 24, 2010.
Summary of Comments
Eight comments were received in response to the notice proposing to
remove the December 11, 2008 regulations.
Two U.S. Senators, Federal Public Defenders, a California capital
defense agency, and a number of other organizations submitted comments
supporting removal of the existing rule. These comments were critical
of the existing regulations and included recommendations concerning the
development or formulation of a replacement rule.
The Criminal Justice Legal Foundation submitted comments that
recommended not removing the portions of the existing rule concerned
with certification procedures, on the ground that present
dissatisfaction by the Department with the section of the existing rule
concerning the substantive criteria a state must meet to be certified
under chapter 154--i.e., 28 CFR 26.22--could at most justify rescinding
that section alone. The commenter accordingly urged that 28 CFR 26.20,
26.21, and 26.23 should be implemented without delay, and that any
further delay would violate the Department's duty to victims of crime.
The creation of a process for States to apply for chapter 154
certification is only part of the Attorney General's responsibilities
under chapter 154, and it makes little sense to retain that process in
the absence of substantive certification criteria. If applications are
submitted, the Attorney General must then decide whether the submitting
States satisfy the requirements for chapter 154 certification. Section
26.22 in the existing rule reflected the Department's understanding of
those requirements at the time the rule was published. However, the
Department has since reconsidered that understanding, including the
rule's assumption that the formulation of counsel competency and
compensation standards for purposes of chapter 154 certification is a
matter of state discretion and subject to very little, if any, further
review by the Attorney General.
The Department believes that the process for considering and
deciding States' applications for chapter 154 certification is best
promulgated concurrently with a rule setting forth the standards for a
State to meet chapter 154's requirements. The Attorney General will
need to decide what standards he will apply in assessing whether State
capital counsel systems are adequate to satisfy the chapter 154
requirements. States correspondingly will need to know what standards
the Attorney General will apply in order to frame those applications
intelligently, and in order to make any necessary changes in their
capital counsel systems prior to applying for Attorney General
certification. Likewise, members of the public will need to know what
standards the Attorney General will apply in order to provide relevant
input concerning the adequacy of State
[[Page 71355]]
applications. Cf. 28 CFR 26.23(c)-(d) (providing for receipt and
consideration of public comment on State applications for chapter 154
certification).
Accordingly, removal of the entire December 11, 2008 final rule at
this time is warranted in order to allow the Attorney General to
articulate the standards he will apply in making chapter 154
certification decisions and to obtain public input concerning the
formulation of such standards. Pending the completion of a new
rulemaking process, receipt and consideration of applications for
chapter 154 certification cannot sensibly go forward in the absence of
articulated standards for deciding such applications.
Regulatory Certifications
Executive Order 12866
This regulation has been drafted and reviewed in accordance with
Executive Order 12866, ``Regulatory Planning and Review,'' section
1(b), Principles of Regulation. The Department of Justice has
determined that this rule is not a ``significant regulatory action''
under Executive Order 12866, section 3(f), and accordingly this rule
has not been reviewed by the Office of Management and Budget.
Executive Order 13132
This regulation will not have substantial direct effects on the
States, on the relationship between the national government and the
States, or on distribution of power and responsibilities among the
various levels of government. This rule merely removes the December 11,
2008 regulations. Therefore, in accordance with Executive Order 13132,
it is determined that this rule does not have sufficient federalism
implications to warrant the preparation of a federalism assessment.
Executive Order 12988-Civil Justice Reform
This regulation meets the applicable standards set forth in
sections 3(a) and 3(b)(2) of Executive Order 12988.
Regulatory Flexibility Act
The Attorney General, in accordance with the Regulatory Flexibility
Act (5 U.S.C. 605(b)), has reviewed this regulation and by approving it
certifies that this regulation will not have a significant economic
impact on a substantial number of small entities. This rule merely
removes the December 11, 2008 regulations.
Unfunded Mandates Reform Act of 1995
This rule will not result in the expenditure by State, local and
tribal governments, in the aggregate, or by the private sector, of
$100,000,000 or more in any one year, and it will not significantly or
uniquely affect small governments. Therefore, no actions were deemed
necessary under the provisions of the Unfunded Mandates Reform Act of
1995.
Small Business Regulatory Enforcement Fairness Act of 1996
This rule is not a major rule as defined by section 251 of the
Small Business Regulatory Enforcement Fairness Act of 1996. 5 U.S.C.
804. This rule will not result in an annual effect on the economy of
$100 million or more; a major increase in costs or prices; or
significant adverse effects on competition, employment, investment,
productivity, or innovation, or on the ability of United States-based
companies to compete with foreign-based companies in domestic and
export markets.
List of Subjects in 28 CFR Part 26
Law enforcement officers, Prisoners.
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Accordingly, for the reasons set forth in the preamble, part 26 of
chapter I of title 28 of the Code of Federal Regulations is amended as
follows:
PART 26--DEATH SENTENCES PROCEDURES
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1. The authority citation for part 26 continues to read as follows:
Authority: 5 U.S.C. 301; 18 U.S.C. 4001(b), 4002; 28 U.S.C. 509,
510, 2261, 2265.
Subpart B--[Removed and Reserved]
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2. Subpart B is removed and reserved.
Dated: November 15, 2010.
Eric H. Holder, Jr.,
Attorney General.
[FR Doc. 2010-29329 Filed 11-22-10; 8:45 am]
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