DOJ Streamlines Certification for Death Penalty Defense Lawyers
Published Date: 3/16/2026
Proposed Rule
Summary
The Department of Justice is updating how it certifies states that provide fair and competent lawyers for death penalty cases. This change will speed up decisions and remove unnecessary roadblocks for states seeking certification. States with capital counsel systems should pay attention and send comments by May 15, 2026, but there’s no new cost involved.
Analyzed Economic Effects
5 provisions identified: 5 benefits, 0 costs, 0 mixed.
90‑Day Deadline for AG Decisions
If a State asks the Attorney General to certify its capital‑counsel system, the Attorney General must decide within 90 days of receiving the request (or within 90 days after the rule is finalized for pending requests). This is meant to speed up how quickly States get a yes-or-no certification.
States Keep Control Over Counsel Standards
The rule removes the 2013 regulation's federal standards on counsel competency and compensation and defines “competent counsel” as counsel meeting state competency standards. That means whether counsel meet competency or compensation levels is left to each State, not the Department of Justice.
Certifications Are Final — No Decertifying
If the Attorney General grants a State certification under chapter 154, that certification is final and there is no procedure in the rule for suspending, reconsidering, revoking, or decertifying that State later. The rule requires the Department to publish granted certifications in the Federal Register and identify the date the qualifying mechanism was established.
No Mandatory Federal Notice-and-Comment
The rule rescinds the requirement that every State certification request be published for public comment in the Federal Register. The Attorney General still may seek public input on particular requests when useful, but public notice-and-comment is not required for all applications.
No New Costs; Small Entities Not Regulated
The rule states it creates no additional costs and may reduce the financial burden on States related to certification applications. It also certifies that no small entities (including small businesses and small governmental jurisdictions) are regulated by this rulemaking.
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