On May 25, the Department of Justice announced that it has proposed 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 Patrick 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.
"I was disturbed that the Bush Justice Department issued regulations 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. The regulations, issued in the waning days of the last administration and without appropriate process, would have undermined the fairness and effectiveness of our criminal justice system.
"Last spring, I joined with Senators Kennedy and Feingold to ask Attorney General Holder to review these regulations and to consider the concerns that we had expressed in our earlier comments. The Attorney General has heard our concerns, particularly about the need to ensure competent counsel, and has now proposed rescinding those troubling regulations. In serious cases, particularly those that could result in the death penalty, it is essential for ensuring effective law enforcement and most of all for ensuring justice that defendants have competent counsel. I applaud Attorney General Holder and the Department for once again recognizing the core rights of all Americans."