Fact and Opinion on Opting-In

Kent Scheidegger excoriates Erwin Chemerinsky for his op-ed in the L.A. Times (which voices opposition to inexplicably-still-Attorney General Gonzales' plan effectively to narrow the time window for habeas petitions under the AEDPA).

While Chemerinsky is perhaps guilty of some hyperbole in his piece, Scheidegger's rebuttal suffers from a stingy pretension to precision that is both self-defeating and at odds with the fact that, well, it is an op-ed we are expounding.

There are two main claims he takes issue with. First, he quotes Chemerinsky's claim that "[a]lmost no states provide counsel in these crucial proceedings" (i.e., habeas review in death penalty cases). By way of rebuttal, he quote Stevens' 1989 <i>Murray</i> dissent, as follows:

Of the 37 States authorizing capital punishment, at least 18 automatically provide their indigent death row inmates counsel to help them initiate state collateral proceedings. Thirteen of the 37 States have created governmentally funded resource centers to assist counsel in litigating capital cases. Virginia is among as few as five States that fall into neither group and have no system for appointing counsel for condemned prisoners before a postconviction petition is filed.

But of course providing counsel to "help initiate" collateral review is not the same thing as "providing counsel in these crucial proceedings." Nor is "creat[ing] governmentally funded resource centers to assist counsel in litigating capital cases." Nor is (as with VA et al.) failing to do even that much. [n.1]

Second, he counters Chemerinsky's claim that "[s]o far, only Arizona has complied [with the provision of counsel requirements]" by noting that California enacted legislation aimed at bringing California into compliance. But as Scheidegger must know, states can't qualify for certification merely by passing a law. [n.2] And however salutary the other nominal or substantive steps California has taken, the fact remains that Arizona is the only state since the passage of the AEDPA whose compliance has been certified. As such, Scheidegger's suggestion that California's problems on this score were "resolved by legislation a decade ago" is at least as misleading as anything in Chemerinsky's piece.

NOTES
1. Incidentally, query how an off-point excerpt from a 1989 dissent could possibly provide evidence of the procedural state of play in 2007.

2. There are six opt-in criteria under the AEDPA concerning appointment mechanisms, statutory or court authority, counsel competence, funding, scope, etc.; failure to meet any one of them disqualifies the state. See, e.g., Hill v. Butterworth.