In one of his final acts before leav­ing office, out­go­ing Attorney General Merrick Garland denied a long­stand­ing request by Arizona state offi­cials for the state to be ​“cer­ti­fied” so it could take advan­tage of cer­tain pro­ce­dur­al ben­e­fits in fed­er­al habeas review of cap­i­tal cas­es. These changes are avail­able only when a state sat­is­fies cer­tain require­ments, and ben­e­fit state actors by impos­ing greater restric­tions on a prisoner’s abil­i­ty to raise claims and by accel­er­at­ing tim­ing to con­clude fed­er­al appeals faster. AG Garland’s deci­sion, signed on January 17, 2025, explained that cer­ti­fi­ca­tion was denied because Arizona had failed to show that it sat­is­fied statu­to­ry require­ments, with spe­cif­ic con­cerns about the low rate of com­pen­sa­tion for post-conviction counsel. 

Arizona first applied for cer­ti­fi­ca­tion in 2013, the same year that fed­er­al reg­u­la­tions were issued describ­ing the cer­ti­fi­ca­tion process. Litigation over these reg­u­la­tions end­ed in 2017, at which point the Department of Justice (DOJ) moved to for­mal­ly con­sid­er Arizona’s cer­ti­fi­ca­tion request. On April 13, 2020, then-Attorney General William Barr’s indi­cat­ed that he would cer­ti­fy Arizona, imme­di­ate­ly result­ing in a new law­suit filed in the D.C. Circuit Court of Appeals by a group of Arizona defense coun­sel and pris­on­ers. On April 28, 2021, the DOJ moved for a vol­un­tary remand of Arizona’s cer­ti­fi­ca­tion to facil­i­tate fur­ther devel­op­ment of the admin­is­tra­tive record and recon­sid­er­a­tion of the cer­ti­fi­ca­tion deci­sion. The court grant­ed that motion on May 26, 2021. See Off. of Fed. Pub. Def. for D. Ariz. v.Garland, No. 20 – 1144 (D.C. Cir. May 26, 2021) (Doc. 1900251). 

To obtain cer­ti­fi­ca­tion, a state must have ​“estab­lished a mech­a­nism for the appoint­ment, com­pen­sa­tion, and pay­ment of rea­son­able lit­i­ga­tion expens­es of com­pe­tent coun­sel in State post­con­vic­tion pro­ceed­ings brought by indi­gent pris­on­ers who have been sen­tenced to death.” 28 U.S.C. 2265(a). AG Garland expressed par­tic­u­lar con­cern about the ade­qua­cy of the $100 max­i­mum hourly rate Arizona has main­tained since 1998 for appoint­ed coun­sel in state post­con­vic­tion pro­ceed­ings. Before mak­ing its deci­sion, DOJ asked Arizona offi­cials to address pub­lic com­ments not­ing that the stan­dard hourly rate for coun­sel appoint­ed under the fed­er­al coun­sel statute was more than twice the max­i­mum hourly rate avail­able for appoint­ed coun­sel in state post­con­vic­tion cap­i­tal pro­ceed­ings. DOJ also asked Arizona to address whether the $100 max­i­mum hourly rate is suf­fi­cient to main­tain a com­pe­tent post­con­vic­tion legal prac­tice; how the cost of liv­ing, medi­an income, and oth­er relat­ed con­sid­er­a­tions have changed in Arizona since 1998, the year the post-con­vic­tion sys­tem was estab­lished; and why the $100 max­i­mum rate is suf­fi­cient now and would be suf­fi­cient through­out the peri­od dur­ing which a cer­ti­fi­ca­tion would be effec­tive. Arizona state offi­cials, how­ev­er, declined to answer these questions. 

AG Garland dis­tin­guished his deci­sion from the ear­li­er deci­sion by then-AG Barr to cer­ti­fy Arizona by not­ing ​“the inter­ven­ing devel­op­ments have unset­tled the basis on which [AG Barr] reached that deter­mi­na­tion.” Specifically, AG Garland not­ed that infla­tion rates of the last few years, which meant that ​“Arizona’s $100 max­i­mum hourly rate has lost approx­i­mate­ly 20 per­cent of its pur­chas­ing pow­er since then-Attorney General Barr’s assessment.” 

In President Trump’s recent­ly issued Executive Order, he directs the new attor­ney gen­er­al to ​“take all appro­pri­ate action to approve or deny any pend­ing request for cer­ti­fi­ca­tion made by any State under 28 U.S.C. 2265.” 

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