What to Know: DOJ Seeks to Fast-Track Appeals for Death-Sentenced Prisoners Through ​“Opt-In” Certification Process Without Considering Opposing Views

The U.S. Department of Justice (DOJ) wants to fast-track death penal­ty appeals and has pro­posed a new set of reg­u­la­tions designed to facil­i­tate that process. If imple­ment­ed, the pro­posed rule would allow the Attorney General to ​“cer­ti­fy” active death penal­ty states like Texas, Florida, and Alabama, result­ing in short­er fil­ing dead­lines and restrict­ed fed­er­al court review, among oth­er changes intend­ed to move appeals through the courts more quick­ly. The rule as cur­rent­ly pro­posed allows the Attorney General to make cer­ti­fi­ca­tion deci­sions based only on the asser­tions of state offi­cials that they pro­vide com­pe­tent attor­neys to pris­on­ers for their state post-con­vic­tion appeals — even when the evi­dence suggests otherwise. 

Why It Matters 

Federal court review is essen­tial to ensur­ing that state con­vic­tions and death sen­tences are accu­rate, fair, and con­sti­tu­tion­al. Limiting the scope of fed­er­al court review and impos­ing short­er fil­ing dead­lines on pris­on­ers only increas­es the risk of wrong­ful con­vic­tions and exe­cu­tions. If it takes effect, the rule will per­mit retroac­tive cer­ti­fi­ca­tions, poten­tial­ly affect­ing dozens of pris­on­ers who would see the elim­i­na­tion of their right to fed­er­al court review before ever fil­ing a peti­tion. States could then move to set execution dates. 

Critically, and in a sig­nif­i­cant depar­ture from long­stand­ing DOJ prac­tice, the pro­posed rule would not per­mit mem­bers of the pub­lic, includ­ing pub­lic defend­ers or advo­cates, to sub­mit com­ments or evi­dence about the accu­ra­cy of the state’s asser­tions. That means the Attorney General would make per­ma­nent cer­ti­fi­ca­tion deci­sions with­out any input from the peo­ple who would be most affect­ed, and with­out con­sid­er­ing any opposing views. 

This rule is part of the Trump Administration’s broad­er push to increase use of the death penal­ty at both the state and federal levels. 

How ​“Opt-In” Works 

State death-sen­tenced pris­on­ers have access to three stages of appeals: a ​“direct appeal” at the state’s high­est court, which is lim­it­ed to review­ing only issues in the tri­al record; a state ​“post-con­vic­tion” appeal, where pris­on­ers may raise state con­sti­tu­tion­al claims such as inef­fec­tive assis­tance of coun­sel or pros­e­cu­to­r­i­al mis­con­duct in sup­port of which they may sub­mit new evi­dence; and final­ly, a ​“habeas cor­pus” appeal in fed­er­al court that asserts fed­er­al con­sti­tu­tion­al claims, but which is lim­it­ed to a review of whether a state court’s appel­late deci­sion was a rea­son­able appli­ca­tion of the law and facts. Prisoners have fed­er­al con­sti­tu­tion­al rights to the appoint­ment of coun­sel for their direct appeal and a statu­to­ry right to coun­sel in fed­er­al habeas, but no guar­an­tee that coun­sel — espe­cial­ly com­pe­tent coun­sel — will be pro­vid­ed for state post-con­vic­tion appeals. This is a crit­i­cal omis­sion, because state post-con­vic­tion is cur­rent­ly the only pro­ceed­ing where pris­on­ers may intro­duce new evi­dence relat­ed to inno­cence or oth­er con­sti­tu­tion­al claims — an impos­si­ble task with­out the assis­tance of a com­pe­tent lawyer. Independent fed­er­al court review has also proven to be an impor­tant check on state pow­er and abuse; many pris­on­ers have obtained relief from fed­er­al courts after state courts have reject­ed their claims.¹

Recognizing the impor­tance — as well as the fail­ures — of too many state coun­sel sys­tems, Congress offered a bar­gain to states that agreed to improve their state appel­late coun­sel sys­tems. Under Chapter 154 of the Anti-Terrorism and Effective Death Penalty Act (AEDPA) of 1996, short­er dead­lines and restrict­ed judi­cial review of fed­er­al habeas claims would be imposed, ben­e­fit­ting state author­i­ties. But in a strict quid pro quo arrange­ment, a state could only receive this ben­e­fit by demon­strat­ing that it had ​“estab­lished a mech­a­nism for the appoint­ment, com­pen­sa­tion, and pay­ment” of ​“com­pe­tent coun­sel” in state post-con­vic­tion pro­ceed­ings, as well as ​“stan­dards of com­pe­ten­cy” for those attor­neys. The appli­ca­tion process for state offi­cials is known as ​“opt­ing in,” while the ulti­mate deci­sion to allow the state to pro­ceed under the accel­er­at­ed appeals sys­tem is called ​“cer­ti­fi­ca­tion.” When a state is cer­ti­fied, a pris­on­er must file his fed­er­al peti­tion with­in 180 days or for­feit his right to fed­er­al review, and the fed­er­al courts must pri­or­i­tize cap­i­tal habeas peti­tions over all non-cap­i­tal cas­es and issue their deci­sions on strict timelines. 

Who Decides If a State Can Opt In, and How? 

AEDPA ini­tial­ly gave fed­er­al courts the pow­er to cer­ti­fy a state under Chapter 154. In the first decade, fed­er­al courts that reviewed state appli­ca­tions and evi­dence from state offi­cials about their post-con­vic­tion sys­tems found that none actu­al­ly had the required com­pe­tent coun­sel sys­tem nec­es­sary to receive the ben­e­fits of the statu­to­ry bar­gain. Congress then amend­ed the law in 2006 to trans­fer the cer­ti­fi­ca­tion deci­sion-mak­ing author­i­ty to the U.S. Attorney General – who is also respon­si­ble for pro­mul­gat­ing the reg­u­la­tions that imple­ment the law. 

This is where the DOJ’s new pro­posed rule comes in. While Congress alone holds the pow­er to pass laws, fed­er­al agen­cies like the DOJ set admin­is­tra­tive reg­u­la­tions to imple­ment those laws. Laws are not always clear or com­pre­hen­sive: for exam­ple, Chapter 154 does not explic­it­ly say what it means for coun­sel to be ​“com­pe­tent,” or the appro­pri­ate lev­el of com­pen­sa­tion. Therefore, the DOJ has issued pro­posed rules for imple­ment­ing this pro­vi­sion under mul­ti­ple pres­i­den­tial admin­is­tra­tions, with spe­cif­ic cri­te­ria for how the Attorney General should eval­u­ate a state’s coun­sel mech­a­nism for certification. 

The 2013 rule estab­lished cri­te­ria to ensure that states were pro­vid­ing cap­i­tal pris­on­ers with post-con­vic­tion attor­neys who were mean­ing­ful­ly com­pe­tent, time­ly appoint­ed, and ade­quate­ly paid for their work. The rule also sub­ject­ed states’ opt-in appli­ca­tions to pub­lic com­ment — which result­ed in fur­ther cer­ti­fi­ca­tion denials after orga­ni­za­tions and indi­vid­u­als sub­mit­ted evi­dence of per­va­sive defi­cien­cies in state coun­sel mech­a­nisms. Though no states were cer­ti­fied, if any had been, they would have to reap­ply every five years. 

The DOJ now seeks to issues a new rule and tie cer­ti­fi­ca­tion only to the evi­dence state offi­cials sub­mit and their claims about how their state coun­sel mech­a­nism works. The DOJ asserts that it has no author­i­ty to set stan­dards beyond the text of the law itself, and that the ear­li­er reg­u­la­tions went too far — for exam­ple, inap­pro­pri­ate­ly requir­ing that states appoint attor­neys in a ​“rea­son­ably time­ly” man­ner. Further, the DOJ pro­pos­es elim­i­nat­ing pub­lic com­ment regard­ing state appli­ca­tions and mak­ing cer­ti­fi­ca­tion decisions permanent. 

The effect of cer­ti­fy­ing states under the DOJ’s pro­posed rule would be the per­ma­nent lim­i­ta­tion of fed­er­al review for state death-sen­tenced pris­on­ers based sole­ly on a state’s claims as to the qual­i­ty of its post-con­vic­tion coun­sel, in a deci­sion that can­not be changed even if that quality deteriorates.