Gonzales to graduate from demiurge to full-blown god.

Alberto Gonzales is the Attorney General of the United States. He’s regularly lied under oath in testimony before the Senate Judiciary Committee and gotten away with it. Congress just granted him virtually unfettered authority to conduct surveillance on U.S. citizens without any meaningful judicial approval or oversight.

That’s a shitload of power for one guy to wield, but apparently not quite enough. He’s about to get a significant amount of control over which state death row inmates get access to federal habeas corpus relief.

This time bomb has been ticking for quite some time. After exhausting their appeals, prisoners convicted of capital crimes in state courts generally seek additional review by petitioning for writs of habeas corpus in federal courts. Eye-for-an-eye types have long whined about how much delay federal habeas causes states in carrying out their divine mandate to off their citizens.

Congress passed the Anti-Terrorism and Effective Death Penalty Act of 1996. One of the Act’s purposes was to shorten the federal habeas process, thereby insuring that death row inmates received their “just desserts” sooner. The Act allowed a state to opt into an expedited federal habeas corpus process, with shorter deadlines and restrictions on authority to issue stays of execution, so long as it could prove to the satisfaction of the federal court of appeals for the circuit in which the state is located that the state had proper procedures in place to ensure that defendants got adequate legal representation in state postconviction proceedings.

Fast forward to 2005. Those goddamn liberal activist judges just weren’t moving fast enough for righteous social conservatives, including Rep. Dan Lundgren (R-CA) and Senator John Kyl (R-AZ). When the USA PATRIOT Authorization and Improvement Act of 2005 came before Congress, everyone thought that it was all about reauthorizing provisions of the original PATRIOT Act that were about to expire.

But Lungren and Kyl slipped in a provision authorizing the Justice Department to promulgate regulations under which the Attorney General gets to decide whether or not states are providing adequate legal representation to death row inmates. Few people knew about that provision beyond lawyers who regularly handle death penalty cases, a pretty small fraternity.

Disturbingly, the proposed Justice Department regulation provides that “[u]pon certification by the Attorney General that a State meets the requirements [for providing adequate representation], such certification is final and will not be reopened.” That’s right — Gonzales’ decision on whether states are giving their death row inmates adequate legal services in post-conviction proceedings is final. Period. End of discussion.

The proposed rule’s language looks to be in direct conflict with the 2005 Act, which provides that the AG’s certifications are subject to review by the U.S. Court of Appeals for the District of Columbia Circuit. Not that it matters much, seeing as how judicial review of an agency’s interpretation and application of its own regulations is pretty fucking deferential in any event.

The proposed regulation was published in the Federal Register on June 6, 2007 and the public comment period, as extended, lasts through September 24.

The L.A. Times has a writeup on the regulation and its consequences here. The text of the proposed regulation is available here. Just type “death penalty” (quote marks and all) into the Quick Search engine and click on the third link that comes up.

Again, impeachment is a shitty idea why?

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