WASHINGTON, D.C. — The U.S. Department of Justice has proposed new regulations that would allow the attorney general to fast-track death penalty appeals based largely on states’ assurances that they provide competent legal representation to death-sentenced prisoners, prompting criticism from public defenders and advocacy organizations that warn the changes could increase the risk of wrongful executions.
Under the proposal, the attorney general could “certify” states for participation in an accelerated federal appeals process using what critics describe as an honor system that relies on state officials’ representations regarding the quality of post-conviction counsel. Advocates argue the proposed changes would sharply curtail meaningful federal court review and eliminate an important safeguard against wrongful convictions and unconstitutional death sentences.
Death-sentenced incarcerated people currently have access to three forms of appeals: direct appeal, state post-conviction appeal and federal habeas corpus review. While incarcerated individuals possess a constitutional right to counsel for direct appeals and a statutory right to counsel during habeas corpus proceedings, there is no guaranteed right to counsel during state post-conviction appeals.
That absence of guaranteed representation is especially consequential because state post-conviction proceedings are often the only opportunity for incarcerated individuals to introduce new evidence related to innocence claims or constitutional violations. Without competent legal representation, advocates contend, many prisoners are effectively unable to investigate or present such claims.
Federal court review has historically served as another safeguard against state errors and abuses, particularly because state courts have frequently rejected prisoners’ claims. Congress attempted to incentivize improvements in state post-conviction counsel systems through Chapter 154 of the Anti-Terrorism and Effective Death Penalty Act of 1996, commonly known as AEDPA.
Under Chapter 154, states could receive procedural benefits — including shorter filing deadlines and narrower federal judicial review of habeas claims — if they demonstrated that they had “established a mechanism for the appointment, compensation, and payment” of “competent counsel” and created “standards of competency” for attorneys handling state post-conviction proceedings. States seeking to join the process are considered to have “opted-in,” and approved states become “certified.”
Critics argue the DOJ’s proposed rule would substantially weaken oversight by prohibiting the public, including public defenders and advocacy organizations, from submitting evidence or comments challenging states’ claims regarding the competency of their post-conviction systems. The attorney general would instead make certification decisions without formal consideration of opposing views or independent evidence from those directly impacted by the process.
The proposal would also permit retroactive certifications, potentially limiting incarcerated individuals’ ability to obtain federal review before they even file petitions challenging their convictions or death sentences. Once certified, states could move forward more quickly in setting execution dates.
The federal Administrative Procedure Act requires agencies proposing new regulations to allow public comment periods intended to ensure transparency and public oversight. In response to the DOJ proposal, numerous public defender organizations and advocacy groups submitted comments outlining concerns about inadequate post-conviction representation systems in various states.
Texas federal and state defender organizations cited one example involving an attorney who copied substantial portions of one client’s petition into several unrelated cases while failing to change names or remove irrelevant legal claims. Although the attorney was later suspended for negligent representation in another case, advocates noted that one of his clients, Steve Nelson, was sentenced to death last year “‘without ever receiving any meaningful state post-conviction review.’”
“Under the proposed rule, a state’s mere claim to offer competent representation would suffice — without any benchmark or standards to guide the certification decision and without any examination of how, in fact, the system of representation has functioned in the real world,” stated the National Advocacy Coalition, The Campaign to End the Death Penalty, in comments regarding the Opt-In Certification Program.
The organization added, “[This] would not only abdicate DOJ’s own certification authority but would also shut out the public, including interested and informed organizations such as ours, from commenting on state certification applications under the harsh light of day.”
Advocates say the proposed rule aligns with broader efforts by the Trump administration to expand the use of the death penalty nationwide. They argue that limiting federal court review while imposing tighter filing deadlines increases the likelihood of wrongful convictions and executions.
Supporters of robust federal oversight maintain that meaningful habeas review remains essential to ensuring death sentences and criminal convictions comply with constitutional standards and are imposed fairly and accurately.
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