Articles

I. Introduction

When Attorney General Alberto R. Gonzales called for public comment on the Department of Justice's (DOJ) notice of proposed rulemaking on the Certification Process for State Capital Counsel Systems, he likely anticipated some sharp criticism over his first pass at promulgating regulations to implement the certification procedures for states seeking to "opt-in" to the expedited federal habeas corpus provision of Chapter 154 of Title 28. What he actually encountered, however, was something closer to Phil Spector's trademark "wall of sound"; a veritable barrage of noise to the tune of more than 32,000 separate comments by individuals, institutions, and organizations, many expressing deep concern over the proposed regulations and the general state of affairs in modern federal habeas corpus review of state capital prisoners' claims. This massive, discordant response should have indicated to the Attorney General that tension over the failures of the federeal habeas system was rising to a fever pitch. Indeed, after years of attempted reform, beginning with Chapter 154 of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), many of the same issues that triggered reform efforts still plague the federal habeas system. Therefore, it came as a surprise that the Attorney General's final proposed regulations largely ignored the substantive feedback from the comments and, with the exception of a few "cosmetic" changes, are virtually identical to the proposed regulations. What caused the Attorney General to ignore this remarkable opportunity to instill a sense of clarity and progress into the system of federal habeas review of state capital prisoners' claims? More importantaly, what needs to be done to prevent this "house of cards" from collapsing on itself?

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