Proposed Rule2026-05134
Certification Process for State Capital Counsel Systems
Primary source
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Published
March 16, 2026
Issuing agencies
Justice Department
Abstract
Chapter 154 of title 28, United States Code, provides special procedures for federal habeas corpus review of cases brought by prisoners in state custody who are under a sentence of death. The special procedures are available to States that the Attorney General has certified as having established mechanisms for the appointment, compensation, and payment of reasonable litigation expenses of competent counsel in state postconviction proceedings brought by indigent prisoners, and as providing standards of competency for the appointment of counsel in these proceedings. This rule would remove impediments to certification that chapter 154 does not authorize and would enable more prompt decisions on States' requests for certification.
Full Text
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<title>Federal Register, Volume 91 Issue 50 (Monday, March 16, 2026)</title>
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[Federal Register Volume 91, Number 50 (Monday, March 16, 2026)]
[Proposed Rules]
[Pages 12525-12532]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2026-05134]
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DEPARTMENT OF JUSTICE
Office of the Attorney General
28 CFR Part 26
[Docket No. OAG198; AG Order No. 6678-2026]
RIN 1105-AB80
Certification Process for State Capital Counsel Systems
AGENCY: Department of Justice.
ACTION: Notice of proposed rulemaking.
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SUMMARY: Chapter 154 of title 28, United States Code, provides special
procedures for federal habeas corpus review of cases brought by
prisoners in state custody who are under a sentence of death. The
special procedures are available to States that the Attorney General
has certified as having established mechanisms for the appointment,
compensation, and payment of reasonable litigation expenses of
competent counsel in state postconviction proceedings brought by
indigent prisoners, and as providing standards of competency for the
appointment of counsel in these proceedings. This rule would remove
impediments to certification that chapter 154 does not authorize and
would enable more prompt decisions on States' requests for
certification.
DATES: Written and electronic comments must be sent or submitted on or
before May 15, 2026. Comments received by mail will be considered
timely if they are postmarked on or before the last day of the comment
period. The electronic Federal Docket Management System will accept
electronic comments until midnight Eastern Time at the end of that day.
ADDRESSES: Comments may be mailed to Regulations Docket Clerk, Office
of Legal Policy, U.S. Department of Justice, 950 Pennsylvania Avenue
NW, Room 4234, Washington, DC 20530. To ensure proper handling, please
reference RIN 1105-AB80 on your correspondence. You may submit comments
electronically or view an electronic version of this proposed rule at
<a href="http://www.regulations.gov">http://www.regulations.gov</a>. In accordance with 5 U.S.C. 553(b)(4), a
summary of this rule may be found at <a href="https://www.regulations.gov">https://www.regulations.gov</a>.
Commenters must submit comments by using one of the methods described
above, not by emailing the address set forth in the following
paragraph.
FOR FURTHER INFORMATION CONTACT: Levi Lall, Counsel, Office of Legal
Policy, U.S. Department of Justice, 950 Pennsylvania Avenue NW,
Washington, DC 20530; telephone 202-598-0771.
SUPPLEMENTARY INFORMATION:
I. Public Participation
Posting of Public Comments. Interested persons are invited to
participate in this rulemaking by submitting written data, views, or
arguments on all aspects of this rule via one of the methods and by the
deadline stated above. The Department of Justice (``the Department'')
also invites comments that relate to the economic, environmental, or
federalism effects that might result from this rule. Comments that will
provide the most assistance to the Department in developing these
procedures will reference a specific portion of the rule, explain the
reason for any recommended change, and include data, information, or
authority that support such recommended change.
Please note that all comments received are considered part of the
public record and made available for public inspection at <a href="http://www.regulations.gov">http://www.regulations.gov</a>. Such information includes personally identifying
information (``PII'') (such as your name, address, etc.).
Interested persons are not required to submit their PII in order to
comment on this rule. However, any PII that is submitted is subject to
being posted to the publicly accessible website at <a href="http://www.regulations.gov">http://www.regulations.gov</a> without redaction.
If you want to submit confidential business information as part of
your comment but do not want it to be posted online, you must include
the phrase ``CONFIDENTIAL BUSINESS INFORMATION'' in the first paragraph
of your comment. You must also prominently identify confidential
business information to be redacted within the comment. If a comment
has so much confidential business information that it cannot be
effectively redacted, all or part of that comment may not be posted on
<a href="http://www.regulations.gov">http://www.regulations.gov</a>.
Confidential business information identified and located as set
forth above will not be placed in the public docket
[[Page 12526]]
file. The Department may withhold from public viewing information
provided in comments that it determines may impact the privacy of an
individual or is offensive. For additional information, please read the
Privacy Act notice that is available via the link in the footer of
<a href="http://www.regulations.gov">http://www.regulations.gov</a>. To inspect the agency's public docket file
in person, you must make an appointment with the agency. Please see the
FOR FURTHER INFORMATION CONTACT paragraph above for agency contact
information.
II. Legal Authority
The Department of Justice is issuing this rule pursuant to 28
U.S.C. 2265(b).
III. Overview
Executing final judgments in state capital cases, and thus
achieving finality for crime victims and their families, is
substantially delayed because of an interminable process of state and
federal postconviction review. Following conviction, sentencing,
affirmance of the convictions and capital sentences on direct state
court review, affirmance of the convictions and capital sentences in
state collateral proceedings, and denial of certiorari by the U.S.
Supreme Court, inmates under sentence of death imposed pursuant to
state law may continue to litigate and relitigate their claims in the
lower federal courts. The process starts by applying for habeas corpus
in a federal district court and ordinarily takes years to move through
the federal court system. Even when a capital sentence survives the
multiple stages of repetitive state and federal review, it is typically
decades before it can be carried out. Data collected by the Department
reveals that, as of December 31, 2022, the average time on death row
was 21 years. See Tracy L. Snell, Bureau of Just. Stat., Capital
Punishment, 2022--Statistical Tables at 10 (2024), <a href="https://perma.cc/UM7U-HXKL">https://perma.cc/UM7U-HXKL</a>. That constitutes a dramatic increase from 1984, at which
time the average time between sentencing and execution was just over
six years. See id. at 12.
While the States have a degree of control over the extent and
duration of capital punishment litigation in their own court systems,
they are powerless to curb the delays resulting from federal habeas
review. Congress initially sought to address this problem in 1996 by
enacting chapter 154 of title 28 as part of the Antiterrorism and
Effective Death Penalty Act of 1996, Public Law 104-132, sec. 107, 110
Stat. 1214, 1221-26. Among other reforms, chapter 154 provides definite
time limits for concluding the adjudication of federal habeas petitions
in capital cases, which otherwise can languish for years at the various
stages of federal court adjudication and review. See, e.g., 28 U.S.C.
2266. Application of chapter 154 is conditioned on States adopting
mechanisms to appoint, compensate, and pay reasonable litigation
expenses for competent counsel to represent indigent prisoners under
sentence of death in state postconviction proceedings in capital cases,
and setting counsel competency standards. See id. 2265(a)(1)(A), (C).
Originally, federal courts determined whether States satisfied
chapter 154's statutory preconditions. Congress eventually concluded,
however, that the courts were not implementing chapter 154 as Congress
intended, but rather were creating their own preconditions for applying
chapter 154 that had no basis in the statute. See 152 Cong. Rec. 2440-
41, 2445-46 (2006) (remarks of Sen. Jon Kyl); 151 Cong. Rec. E2639-40
(2005) (remarks of Rep. Jeff Flake). Congress accordingly amended
chapter 154 in 2006 to assign the certification determination to the
Attorney General, believing that the Attorney General would be free of
the conflicts of interest that were leading to adverse judicial
decisions from the regional courts of appeals. Id. Congress further
amended chapter 154 by adding section 2265(a)(3), which states that
``[t]here are no requirements for certification or for application of
this chapter other than those expressly stated in this chapter.'' USA
PATRIOT Improvement and Reauthorization Act of 2005, Public Law 109-
177, sec. 507(c), 120 Stat. 192, 250 (2006) (codified at 28 U.S.C.
2265(a)(3)).
Following the direction of 28 U.S.C. 2265(b) to promulgate
implementing regulations for the certification procedure, Attorney
General Mukasey issued regulations in 2008 to carry out the chapter in
conformity with the legislative text, imposing no significant
preconditions on State qualification beyond those appearing expressly
in the statutes. See Certification Process for State Capital Counsel
Systems, 73 FR 75327 (Dec. 11, 2008) (``2008 Regulations''). However,
the regulations were quickly challenged in litigation, and following a
change of administration, Attorney General Holder rescinded the
original regulations and later issued regulations imposing many
additional requirements and restrictions on chapter 154 certification.
See Certification Process for State Capital Counsel System, 78 FR
58160, 58160-61 (Sept. 23, 2013) (``2013 Regulations'').
Following another change of administration, and after clearing
additional litigative challenges, the Department began reviewing state
applications for chapter 154 certification. It ultimately concluded in
2020 that Arizona satisfied chapter 154's requirements. See
Certification of Arizona Capital Counsel Mechanism, 85 FR 20705 (Apr.
14, 2020). The 2020 certification was promptly challenged in the D.C.
Circuit and, following the transition to the Biden Administration, the
Department effectively nullified the 2020 certification by seeking and
securing a voluntary remand from the D.C. Circuit for further
development of the administrative record and reconsideration. See
Arizona Chapter 154 Certification Review; Notice Regarding Arizona's
June 2022 Response, 87 FR 52416 (Aug. 25, 2022). On January 17, 2025,
Attorney General Garland signed an order determining that the record
did not support a conclusion that Arizona's postconviction capital
counsel mechanisms meet the requirements under chapter 154 and denying
certification to Arizona, notwithstanding the favorable determination
by Attorney General Barr in 2020. Denial of Arizona Chapter 154
Certification, A.G. Order No. 6157-2025 (2021).
Hence, nearly 30 years after the original enactment of chapter 154,
its expedited federal habeas corpus procedures have not been applied in
federal habeas review of a single state capital case, effectively
rendering chapter 154 a dead letter and thwarting Congress's
objectives. To ensure that Congress's statutory scheme is given effect,
the Department is re-committing to implementing chapter 154 in
conformity with its terms. Cf. Memorandum from Attorney General Pam
Bondi to All Department Employees, Re: Reviving the Federal Death
Penalty and Lifting the Moratorium on Federal Executions (Feb. 5,
2025), <a href="https://perma.cc/U3AG-ELUD">https://perma.cc/U3AG-ELUD</a>. Effectuating the statute's terms
requires rescinding aspects of the 2013 Regulations that add non-
statutory requirements for certification and adopting other changes
that will expedite and strengthen the certification process. The
affected areas are counsel competency, compensation of counsel,
timeliness of appointment, the definition of indigent prisoners, the
Department's internal review process for state applications, and the
finality of certifications. Because each of the proposed changes to
these affected areas is independently valid and justified, the proposed
rule clarifies that each proposed change is severable.
[[Page 12527]]
Attorney General's Regulatory Responsibilities
Section 2265(b) requires the Attorney General to ``promulgate
regulations to implement the certification procedure'' under section
2265(a). 28 U.S.C. 2265(b). By its terms, the grant of regulatory
authority to the Attorney General is limited to procedure, not
substance. The statute further restrains the Attorney General's
regulatory authority by providing that ``[t]here are no requirements
for certification or for application of this chapter other than those
expressly stated in this chapter.'' Id. 2265(a)(3).
Notably, chapter 154 leaves undisturbed the States' authority to
set substantive standards for counsel competency, appointment,
compensation, and payment of reasonable litigation expenses. Section
2265(a)(1)(C) directs the Attorney General merely to determine whether
``the State provides standards of competency for the appointment of
counsel in proceedings described in subparagraph (A).'' Id.
2265(a)(1)(C). Similarly, section 2265(a)(1)(A) directs the Attorney
General to determine only ``whether the State has established a
mechanism for the appointment, compensation, and payment of reasonable
litigation expenses for competent counsel.'' Id. 2265(a)(1)(A). In
light of these narrow authorizations to the Attorney General and
section 2265(a)(3)'s prohibition against adding to chapter 154's
express requirements, the 2013 Regulations exceeded the Attorney
General's statutory authority by promulgating federal standards on
counsel competency, appointment, and compensation, in addition to other
atextual requirements. This rule thus does not prescribe alternative
federal standards on these issues, which would suffer from the same
legal infirmity.
Statutory prohibition aside, adding atextual requirements to
chapter 154 through federal regulation would thwart Congress's goal of
expediting federal habeas review of state capital convictions; delay
finality for victims and their families; increase burdens on States,
the Department, and affected parties; and unnecessarily complicate
review of state applications. For these reasons, even if the Attorney
General had statutory discretion to promulgate certification
requirements in addition to those in section 2265--which she does not--
she would not exercise such discretion.
Counsel Competency
Section 2265(a)(1) directs the Attorney General to determine
``whether the State has established a mechanism for the appointment . .
. of competent counsel'' and ``whether the State provides standards of
competency for the appointment of counsel.'' 28 U.S.C. 2265(a)(1). The
2008 Regulations naturally understood this to mean that the state
capital counsel mechanism must provide for the appointment of counsel
who meet competency standards that the State has adopted. The 2008
Regulations rejected the view that the Attorney General could adopt a
nationwide, federal counsel competency standard, which chapter 154
nowhere authorizes
Some commenters urged that the rule be revised to provide
further specification concerning the ``standards of competency[ ]''
[and] ``competent counsel'' . . . that a state's postconviction
capital counsel system must provide to qualify for chapter 154
certification. For example, . . . the Judicial Conference of the
United States in its comments urged . . . that ``[s]pecific
mandatory standards similar to those set forth in [18 U.S.C. 3599]
should be required with respect to the appointment and compensation
of counsel for capital defendants . . . . The commenters are correct
that the text of chapter 154 needs to be supplemented in defining
competency standards for postconviction capital counsel, but
mistaken as to who must effect that supplementation. Responsibility
to set competency standards for postconviction capital counsel is
assigned to the states that seek certification. 28 U.S.C.
2265(a)(1)(C) . . . . [While] the Judicial Conference . . . urg[ed]
that states be required to satisfy federally prescribed standards of
counsel competency . . . , Congress did not accept the Conference's
recommendation on this point . . . . The Attorney General has no
authority to overrule Congress and prescribe standards that others
unsuccessfully urged Congress to impose.
73 FR at 75330-31.
In contrast, the 2013 Regulations required States to comply with
competency standards sufficient in the Attorney General's judgment,
relying on an opinion issued in 2009 by the Department's Office of
Legal Counsel (``OLC''). See 78 FR at 58161-62, 58169-72, 58177-79
(citing State Procedures for Appointment of Competent Counsel in Post-
Conviction Review of Capital Sentences, 33 Op. O.L.C. 402 (2009)
(``2009 OLC Opinion'')). The 2009 OLC Opinion opined that chapter 154
did not ``compel'' the Attorney General to interpret chapter 154 in the
same manner as the original 2008 Regulations, and that chapter 154
could ``reasonably'' be interpreted to allow greater discretion to
prescribe federal counsel competency requirements ``under the now
familiar Chevron framework.'' 2009 OLC Opinion, 33 Op. O.L.C. at 409,
411 (citing Chevron U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467
U.S. 837, 844 (1984)).
The Supreme Court has since overruled Chevron in Loper Bright
Enterprises v. Raimondo, 603 U.S. 369 (2024). Following Chevron's
abrogation, agencies must adhere to the single best reading of the
statutes they administer, and not alternative, less plausible
interpretations that are merely within the bounds of what could be
considered reasonable. In view of this intervening precedent, OLC
recently withdrew its 2009 Opinion after determining that it did not
provide even a permissible reading of section 2265. Reconsidering State
Procedures for Appointment of Competent Counsel in Postconviction
Review of Capital Sentences, 50 Op. O.L.C. __, at *3-4 (Feb. 18, 2025)
(``2025 OLC Opinion''). Having fully considered the matter, the
Attorney General has concluded that the 2013 Regulations' counsel-
competency provisions do not reflect the best reading of the statute.
The best reading of chapter 154 is that it does not authorize the
Attorney General to establish federal competency standards for state
capital counsel, and does not permit the Attorney General to impose
more stringent requirements relating to counsel competency than those
expressly stated in chapter 154 itself. See 28 U.S.C. 2265(a)(3).
Hence, this proposed rule limits the regulations only to what is
required by the statute and rescinds the additional counsel-competency
requirements appearing in Sec. 26.22(b) in the 2013 Regulations. See
78 FR at 58183-84.
Compensation of Counsel
Section 2265(a)(1) directs the Attorney General to determine
``whether the State has established a mechanism for the . . .
compensation . . . of . . . counsel.'' 28 U.S.C. 2265(a)(1). The 2008
Regulations rejected public comments that urged that the regulations
should adopt more stringent compensation requirements:
With respect to compensation of counsel, various commenters
urged that the rule be more prescriptive regarding the amount of
required compensation, to ensure that state postconviction capital
counsel are ``reasonably'' or ``adequately'' compensated or receive
``fair'' compensation. Again, such comments urge the regulatory
adoption of measures that Congress declined to include in chapter
154. In contrast to the immediately succeeding phrase concerning
litigation expenses in section 2265(a)(1)(A), which requires a
mechanism for payment of ``reasonable'' litigation expenses, the
language relating to ``compensation'' in the same provision comes
with no qualifier. The statute requires only that the state have a
mechanism for the ``compensation'' of
[[Page 12528]]
postconviction capital counsel, leaving determination of the level
of compensation to the states.
73 FR at 75331.
Drawing on the 2009 OLC Opinion, the 2013 Regulations maintained
that the Department could ignore Congress's statutory language and
impose extra-statutory counsel-compensation requirements as necessary
to ensure the availability for appointment of competent counsel. See 78
FR at 58161-62, 58179. As with its approach to counsel competency, the
2009 OLC Opinion again relied on Chevron's deference to ``reasonable,''
but not necessarily best, interpretations of statutes, see 2009 OLC
Opinion, 33 Op. O.L.C. at 419--deference that no longer exists
following the Supreme Court's decision in Loper Bright. See also 2025
OLC Opinion, 50 Op. O.L.C. __, at *1 (withdrawing 2009 OLC Opinion).
Having fully considered the matter, the Attorney General has
concluded that the 2013 Regulations' understanding of chapter 154's
language relating to compensation of counsel is not the best reading of
the statute. Section 2265(a)(3) unequivocally prohibits imposing
requirements not expressly stated in chapter 154 itself. The 2013
Regulations' atextual federal compensation requirements, see 78 FR at
58183, contravene Congress's express prohibition. Moreover, chapter 154
recognizes States' authority to set the mechanism for counsel
compensation and simply authorizes the Attorney General to
``determine'' that a State has done so. 28 U.S.C. 2265(a)(1)(A).
Because chapter 154 does not authorize the Attorney General to set a
federal compensation standard for state capital counsel, the Attorney
General is statutorily prohibited from regulating on this issue.
Even if chapter 154 did give the Attorney General discretion to
prescribe by regulation counsel-compensation requirements not stated in
chapter 154, the Attorney General would not exercise that discretion.
If States are unable to provide counsel--due to insufficient
compensation or any other reason--then the expedited federal habeas
review procedures of chapter 154 are not available to them. 28 U.S.C.
2261(b)(2) generally conditions the application of chapter 154 on
actual representation by or waiver of counsel. Thus, the States are
incentivized to provide compensation that will attract willing counsel.
The statutory requirement that States ``establish[ ] a mechanism for
the appointment . . . of competent counsel'' ensures that States must
offer sufficient compensation to attract counsel meeting this
qualification. Id. 2265(a)(1)(A).
Because the imposition of a federal compensation standard
contravenes Congress's prohibition of extra-statutory requirements, see
28 U.S.C. 2265(a)(3), the proposed rule rescinds the atextual counsel-
compensation requirements of section 26.22(c) appearing in the 2013
Regulations. See 78 FR at 58183.
Timeliness of Appointment
The 2013 Regulations added a requirement that appointment of state
postconviction capital counsel must be ``in a manner that is reasonably
timely in light of the time limitations for seeking state and federal
postconviction review and the time required for developing and
presenting claims in the postconviction proceedings.'' 78 FR at 58177.
The 2008 Regulations had no similar requirement because nothing of this
nature appears in chapter 154, and ``[t]here are no requirements for
certification or for application of this chapter other than those
expressly stated in this chapter.'' 28 U.S.C. 2265(a)(3). Indeed, the
judicial imposition of a timely appointment requirement motivated
Congress's decision in 2006 to transfer the chapter 154 certification
determination to the Attorney General and to add a provision
prohibiting any addition to chapter 154's express requirements. 152
Cong. Rec. 2446 (remarks of Sen. Jon Kyl) (``In Spears v. Stewart, the
Ninth Circuit . . . den[ied] the State the benefit of [chapter 154]
qualification because of a delay in appointing counsel. . . . Paragraph
(a)(3) of new section 2265 forbids creation of additional requirements
not expressly stated in the chapter, as was done in the Spears case.''
(citation omitted)); see 73 FR at 75332.
The 2013 Regulations sought to justify this addition to the express
statutory requirements on the ground that in some situations delay in
appointing postconviction counsel could deprive a defendant of
meaningful assistance of counsel. See 78 FR at 58165-67, 58176-77.
Chapter 154, however, directs the Attorney General to determine whether
States have capital counsel mechanisms that satisfy the requirements
Congress has prescribed in chapter 154--not to insert requirements that
others believe Congress ought to have included. Timing rules for
appointment of state postconviction capital counsel are not among the
express statutory requirements. Nor does inserting ``reasonably
timely'' into a ``definition'' of ``appointment''--a term that requires
no definition--circumvent the statute's unequivocal prohibition of
atextual certification requirements.
This proposed rule accordingly rescinds the ``reasonably timely''
requirement graphed onto the definition of appointment by the 2013
Regulations.
Definition of Indigent Prisoners
The 2008 Regulations did not include any special definition of the
term indigent prisoners. See 73 FR at 75338. The 2013 Regulations added
a special definition of ``[i]ndigent prisoners'' to mean ``persons
whose net financial resources and income are insufficient to obtain
qualified counsel.'' See 78 FR at 58183. No explanation was provided
for the addition of this special definition. See id. 58165-68.
This proposed rule rescinds the definition of ``indigent
prisoners.'' Indigency requires no special definition because all
jurisdictions will have a definition of this term that they can use,
given that States are required to appoint counsel for indigent
defendants in trial and appellate proceedings. The definition in the
2013 Regulations clouds what is otherwise a clear and familiar concept
because it refers to persons whose financial resources and income are
insufficient to obtain ``qualified'' counsel, with no explanation of
what ``qualified'' is supposed to mean.
Application Review Process
Both the 2008 Regulations and the 2013 Regulations included a
categorical requirement that the Attorney General publish a notice in
the Federal Register of every State's request for chapter 154
certification and receive and consider public comments thereon. See 73
FR at 75339; 78 FR at 58184. This proposed rule rescinds this
requirement for two reasons:
First, notice and comment is not required under either chapter 154
or the Administrative Procedure Act (``APA''). Nothing in chapter 154
contemplates a categorical requirement for public notice and comment
with respect to all States' applications, regardless of actual need,
with resulting delay in deciding whether the State is entitled to the
application of chapter 154. Evaluating States' requests for chapter 154
certification consistent with Congress's statutory framework should be
simpler and quicker without the legally and practically unnecessary
requirement that processing States' requests must start by posting them
for public comment.
The APA likewise does not require notice and comment for chapter
154 certification requests. Under the APA, the chapter 154
certification process is an adjudication, not a rulemaking, and the
resulting certification decisions are
[[Page 12529]]
orders, not rules. Hence, the notice-and--comment requirements of 5
U.S.C. 553 for rulemaking do not apply. See 73 FR at 75333-34; 78 FR at
58174.
Second, public notice and comment will not always be necessary for
determining whether a State has established a capital counsel mechanism
that satisfies chapter 154. Stripped of the extra-statutory conditions
of the 2013 Regulations, certification decisions present fairly
straightforward questions regarding whether a State has a mechanism for
appointing, compensating, and paying reasonable litigation expenses of
counsel, and has standards of competency for such appointments. These
are matters that may be readily ascertainable from a State's statutes
and policies and from the information in its request for certification,
without need for public input through Federal Register publication.
Nevertheless, the Attorney General will retain the discretion to seek
public input on individual state certification requests when judged
necessary or helpful, as may be done with respect to any other matter
the Attorney General needs to decide.
Finality of Certifications
Chapter 154 provides no authorization for the Attorney General to
temporally limit State certifications and require periodic
recertification, or to terminate or revoke a certification once
granted. The plain statutory text reflects Congress's decision to adopt
a system of one-time, permanent certification, as was explicitly stated
by one of its key drafters during the course of its ratification:
When section 507 [i.e., the 2006 chapter 154 amendments] was
being finalized, I and others were presented with arguments that
some mechanism should be created for ``decertifying'' a State that
has opted in to chapter 154 but that allegedly has fallen out of
compliance with its standards. I ultimately concluded that such a
mechanism was unnecessary, and that it would likely impose
substantial litigation burdens on the opt-in States that would
outweigh any justification for the further review. . . . [I]f such a
means of post-opt-in review were created, it inevitably would be
overused and abused. . . . I thought it best to create a system of
one-time certification, with no avenues to challenge or attempt to
repeal the State's continuing chapter-154 eligibility. The
consequences of opting in to chapter 154 should not be perpetual
litigation over the State's continuing eligibility. . . . Therefore
. . . , once a State is certified for chapter 154, that
certification is final. There is no provision for
``decertification'' or ``compliance review'' after the State has
been made subject to chapter 154.
152 Cong. Rec. 2446 (remarks of Sen. Jon Kyl).
The 2008 Regulations recognized and respected the terms of chapter
154 in this regard, as well as the intent clearly stated in the
legislative history. See 73 FR at 75335.
The 2013 Regulations do not. They acknowledge that chapter 154
contains ``no direction to the Attorney General to implement a
decertification procedure'' and that ``day-to-day oversight and
potential decertification of state capital counsel mechanisms are not
among the Attorney General's authorized functions under chapter 154.''
78 FR at 58175. Nevertheless, the 2013 Regulations provide
categorically that a certification remains good only for a period of
five years, a condition that likewise does not appear in chapter 154.
See id. at 58184. The 2013 Regulations sought to justify this
requirement based on a policy concern that a State's capital-counsel
mechanism should be periodically revisited to ensure continued
compliance with chapter 154. See id. at 58175-76, 58180-81.
However, speculative concerns about possible future changes in
certified States' capital-counsel mechanisms, which may not occur in
any State, cannot justify the addition of a regulatory certification
requirement not required by the statute and contrary to the legislative
intent. The 2013 Regulations' five-year rule makes chapter 154
inapplicable unless a State reapplies for certification after five
years and persuades the Attorney General again that it has established
a capital counsel mechanism satisfying chapter 154's requirements--a
condition on chapter 154's application that appears nowhere in chapter
154 itself. Since there are ``no requirements for certification or for
application of'' chapter 154 ``other than those expressly stated in
th[e] chapter,'' 28 U.S.C. 2265(a)(3), the requirement to recertify
after five years, see 78 FR at 58184, is ultra vires and this proposed
rule rescinds it.
Severability
Each of the reforms proposed in this rulemaking is independently
justified and valid. For example, rescission of the 2013 Regulations'
federal compensation standard for state capital counsel is necessary
and justified, regardless of the validity of this rule's rescission of
the federal counsel-competency standard, timeliness requirement for
appointments, or limitation on the finality of certifications, and vice
versa. Likewise, affording the Attorney General discretion on whether
public notice and comment is needed or useful in deciding any
particular State's application for chapter 154 certification is
justified and valid, regardless of the validity of the rule's other
reforms. The provisions of this rule accordingly are severable and each
is valid regardless of the validity or invalidity of any other
provision.
IV. Section-by-Section Analysis
By section and subsection, the provisions of the proposed rule are
as follows:
Section 26.20
Section 26.20 explains the rule's purpose of implementing the
certification procedure for chapter 154, as directed by 28 U.S.C.
2265(b). It briefly describes the effect of chapter 154 certification.
This explanation has been shortened from the 2013 Regulations for
clarity.
Section 26.21
Section 26.21 defines the terms ``appropriate state official'' and
``State postconviction proceedings.'' These definitions are unchanged
from the previous regulations and reflect the same purposes. See 78 FR
at 58177, 58183.
Section 26.21 no longer includes the 2013 Regulations' definition
of ``[a]ppointment'' to mean ``provision of counsel in a manner that is
reasonably timely in light of the time limitations for seeking state
and federal postconviction review and the time required for developing
and presenting claims.'' See id. at 58183. This was not a definition of
``appointment'' at all--a term that requires no definition in this
context--but rather an effort to add a timeliness-of-appointment
precondition for chapter 154 certification, contrary to section
2265(a)(3)'s prohibition of conditions for certification not expressly
stated in the chapter.
Section 26.21 no longer includes the 2013 Regulations' definition
of ``[i]ndigent prisoners'' to mean ``persons whose net financial
resources and income are insufficient to obtain qualified counsel.''
See id. Indigency requires no special definition here because all
jurisdictions will have a definition of this term that they can use,
given that States are required to appoint counsel for indigent
defendants in trial and appellate proceedings. The definition in the
2013 Regulations clouds what is otherwise a clear and familiar concept
because it refers to persons whose financial resources and income are
insufficient to obtain ``qualified'' counsel, with no explanation of
what ``qualified'' is supposed to mean.
[[Page 12530]]
Section 26.21 adds a definition of ``competent counsel'' to mean
``counsel meeting state standards of competency.'' This confirms that
chapter 154's requirement relating to competent counsel means
appointment of counsel meeting state standards of competency, not the
additional federal standard of competency appearing in Sec. 26.22(b)
in the 2013 Regulations, see id., which is ultra vires because chapter
154 does not authorize a federal competency standard.
Section 26.22
Subsections (a) and (b) of Sec. 26.22 reproduce (i) 28 U.S.C.
2265(a)(3)'s provision that there are no requirements for certification
or application of chapter 154 other than those expressly stated in the
chapter and (ii) chapter 154's express requirements for certification,
relating to appointment, compensation, payment of reasonable litigation
expenses, and competency. Section 26.22 as amended does not include the
extra-statutory federal competency and compensation standards appearing
in Sec. 26.22(b)-(c) in the 2013 Regulations, see 78 FR at 58183,
which are ultra vires because they do not appear expressly in chapter
154.
Subsections (a) and (b) of Sec. 26.22 also do not include language
from Sec. 26.22(a) in the 2013 Regulations requiring that
postconviction counsel ``may not be counsel who previously represented
the prisoner at trial unless the prisoner and counsel expressly
requested continued representation.'' 78 FR at 58183. This language
mirrors a statutory requirement in 28 U.S.C. 2261, which imposes
conditions on the application of expedited habeas proceedings. But
section 2261's text and structure reflect that this requirement is not
a precondition for state certification under section 2265. Start with
section 2261(b), which provides that chapter 154 applies if, among
other requirements, ``the Attorney General certifies [ ] a State . . .
as provided in section 2265.'' Neighboring section 2261(d) then
provides that ``[n]o counsel appointed pursuant to subsections (b) and
(c) to represent a State prisoner under capital sentence shall have
previously represented the prisoner at trial in the case for which the
appointment is made unless the prisoner and counsel expressly request
continued representation.'' 28 U.S.C. 2261(d). This is most naturally
read as an additional, independent qualification on subsections (b) and
(c) for applying expedited habeas procedures, distinct from the section
2265 certification requirements separately cross referenced in section
2261(b).
Section 2265 reinforces this reading. That section provides that
``certification'' is limited to only three determinations: (A) whether
the State has 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; (B) the date on
which the mechanism described in subparagraph (A) was established; and
(C) whether the State provides standards of competency for the
appointment of counsel in proceedings described in subparagraph (A).
Id. 2265(a)(1). These determinations do not include whether post-
conviction counsel is separate from trial counsel--a requirement found
in section 2261. Whether postconviction counsel is separate from trial
counsel (absent an express request for continued representation) is a
question for a federal court to determine on a case-by-case basis and
would be ill-suited to a categorical state certification decision. The
2013 Regulations improperly conflated it with the separate requirements
for certification by the Attorney General.
Subsection (c) of Sec. 26.22 rescinds the unnecessary requirement
that all chapter 154 certification requests be subject to public notice
and comment. See 78 FR at 58174, 58183. It instead promotes the prompt
resolution of certification applications by directing the Attorney
General to make a determination within 90 days of receipt of the
request. For certification applications that are pending when this rule
is finalized, Sec. 26.22(c)'s 90-day decision period begins to run
from the finalization of the rule. Section 26.22(c) further provides
that these time rules do not affect the validity of a later
certification decision by the Attorney General if the Attorney General
is unable to decide within the relevant time frame. This ensures that
the Attorney General will not be divested of authority to make a
certification determination, and that the State will not have to
restart the application and certification process if, for example, the
Attorney General is temporarily barred from proceeding with a
certification because of a district court's injunction.
Subsection (d) of Sec. 26.22 provides that the certification is
final and that there is no authorization or procedure for suspending,
reconsidering, revoking, or denying a certification once granted. This
rescinds the 2013 Regulations' provision in Sec. 26.23(d)-(e) that
certifications lapse after five years.
Section 26.23
Section 26.23 no longer discusses the certification process because
that issue is now addressed in Sec. 26.22. Instead, Sec. 26.23 adds a
severability provision for the rule.
V. Regulatory Requirements
A. Regulatory Flexibility Act
The Attorney General, in accordance with the Regulatory Flexibility
Act (5 U.S.C. 605(b)), has reviewed this regulation and by approving it
certifies that this regulation will not have a significant economic
impact on a substantial number of small entities for the purposes of
that Act because the regulation only implements the certification
procedure for chapter 154 of title 28. No small entities (small
businesses, small organizations, or small governmental jurisdictions)
are regulated by this rulemaking.
B. Executive Orders 12866 and 13563--Regulatory Review
The Office of Management and Budget (``OMB'') has determined that
this rulemaking is a ``significant regulatory action'' under section
3(f) of Executive Order 12866, 58 FR 51735, 51738 (Sept. 30, 1993), but
that it is not a section 3(f)(1) significant action. Accordingly, this
proposed rule has been submitted to OMB for review. This proposed rule
has been drafted and reviewed in accordance with section 1(b) of
Executive Order 12866 and Executive Order 13563, 76 FR 3821 (Jan. 18,
2011). The changes made by this rulemaking involve no additional costs.
If anything, this rulemaking will diminish the financial burden on
States related to their applications for certification. The benefits
include increased ease and expedition in determining whether States
have satisfied the requirements of chapter 154.
C. Executive Order 14192--Unleashing Prosperity Through Deregulation
Executive Order 14192, 90 FR 9065 (Jan. 31, 2025), requires an
agency, unless prohibited by law, to identify at least 10 existing
regulations to be repealed or revised when the agency publicly proposes
for notice and comment, or otherwise promulgates a new regulation, that
qualifies as an Executive Order 14192 regulatory action (defined in OMB
Memorandum M-25-20 as a final significant regulatory action as defined
in section 3(f) of Executive Order 12866 that imposes total costs
greater than zero). In furtherance of this requirement, section 3(c) of
Executive Order 14192 requires that the incremental costs associated
with such
[[Page 12531]]
new regulations must, to the extent permitted by law, also be offset by
eliminating existing costs associated with at least 10 prior
regulations. Id. at 9065. This proposed rule proposes to rescind
impediments to certification that chapter 154 does not authorize, and
to enable more prompt decision of States' requests for certification.
Accordingly, this rule, if finalized, will be considered a deregulatory
action.
D. Executive Order 14294--Overcriminalization of Federal Regulations
Executive Order 14294, 90 FR 20363 (May 9, 2025), requires agencies
promulgating regulations with criminal regulatory offenses potentially
subject to criminal enforcement to explicitly describe the conduct
subject to criminal enforcement, the authorizing statutes, and the mens
rea standard applicable to each element of those offenses. Id. at
20363. This proposed rule does not create a criminal regulatory offense
and is thus exempt from Executive Order 14924 requirements.
E. Executive Order 13132--Federalism
This proposed rule will not have substantial direct effects on the
States, on the relationship between the national government and the
States, or on the distribution of power and responsibilities among the
various levels of government, as outlined by Executive Order 13132, 64
FR 43255 (Aug. 4, 1999). The proposed rule implements only a procedure
for States that request certification of their postconviction capital-
counsel mechanisms under chapter 154 of title 28.
F. Executive Order 12988--Civil Justice Reform
This proposed rule meets the applicable standards set forth in
sections 3(a) and 3(b)(2) of Executive Order 12988, 61 FR 4729, 4730-32
(Feb. 5, 1996), to specify provisions in clear language. Pursuant to
section 3(b)(1)(I) of the Executive Order, nothing in this proposed
rule is intended to create any legal or procedural rights enforceable
against the United States. See id. at 4731.
G. Unfunded Mandates Reform Act of 1995
This rule when finalized will not result in the expenditure by
state, local and tribal governments, in the aggregate, or by the
private sector, of $100 million or more (as adjusted for inflation) in
any one year and it will not significantly or uniquely affect small
governments. Therefore, no actions were deemed necessary under the
provisions of the Unfunded Mandates Reform Act of 1995. The rule only
concerns the procedure for certification of state postconviction
capital counsel mechanisms under chapter 154 of title 28.
List of Subjects in 28 CFR Part 26
Law enforcement officers, Prisoners.
Authority and Issuance
Accordingly, for the reasons stated in the preamble, the Attorney
General proposes to amend 28 CFR part 26 as follows:
PART 26--DEATH SENTENCES PROCEDURES
0
1. The authority citation for part 26 continues to read as follows:
Authority: 5 U.S.C. 301; 18 U.S.C. 4001(b), 4002; 28 U.S.C.
509, 510, 2261, 2265.
0
2. Subpart B of part 26 is revised to read as follows:
Subpart B--Certification Process for State Capital Counsel Systems
Sec.
26.20 Purpose.
26.21 Definitions.
26.22 Certification.
26.23 Severability.
Subpart B--Certification Process for State Capital Counsel Systems
Sec. 26.20 Purpose.
Sections 2261(b)(1) and 2265(a) of title 28 of the United States
Code require the Attorney General to certify whether a State has
established a mechanism for providing legal representation to indigent
prisoners in State postconviction proceedings in capital cases that
satisfies the requirements of chapter 154 of title 28. Certification
qualifies the State for the application, in its capital cases, of
special federal habeas corpus review procedures set forth in sections
2262, 2263, 2264, and 2266 of title 28. Subsection (b) of 28 U.S.C.
2265 directs the Attorney General to promulgate regulations to
implement the certification procedure under subsection (a) of that
section.
Sec. 26.21 Definitions.
For purposes of this part, the term--
Appropriate State official means the state attorney general, except
that, in a State in which the state attorney general does not have
responsibility for federal habeas corpus litigation, it means the chief
executive of the State.
Competent counsel means counsel meeting state standards of
competency for the appointment of counsel in state postconviction
proceedings brought by indigent prisoners who have been sentenced to
death.
State postconviction proceedings means collateral proceedings in
state court, regardless of whether the State conducts such proceedings
after or concurrently with direct state review.
Sec. 26.22 Certification.
(a) There are no requirements for certification or for application
of chapter 154 other than those expressly stated in the chapter. An
appropriate state official may request in writing that the Attorney
General determine whether the State meets the requirements for
certification expressly stated in chapter 154. If so requested, the
Attorney General shall determine--
(1) Whether the State has 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;
(2) The date on which the mechanism was established; and
(3) Whether the State provides standards of competency for the
appointment of counsel in proceedings described in paragraph (1) of
this section.
(b) As provided in 28 U.S.C. 2261(c), the mechanism must offer
postconviction counsel to all indigent prisoners with capital sentences
and must provide for the entry of an order by a court of record--
(1) Appointing one or more attorneys as counsel to represent the
prisoner upon a finding that the prisoner is indigent and accepted the
offer or is unable competently to decide whether to accept or reject
the offer;
(2) Finding, after a hearing if necessary, that the prisoner
rejected the offer of counsel and made the decision with an
understanding of its legal consequences; or
(3) Denying the appointment of counsel, upon a finding that the
prisoner is not indigent.
(c) The Attorney General shall determine whether to certify a
State's capital counsel mechanism within the later of--
(1) 90 days after the Attorney General's receipt of the request for
certification by the appropriate state official; or
(2) 90 days after the Attorney General publishes in the Federal
Register a final rule, if the request for certification is received
before the final rule is published in the Federal Register.
(d) The failure to make a determination within the applicable
[[Page 12532]]
time frame because of judicial interference or other circumstances
beyond the Attorney General's control does not affect the validity of a
later determination.
(e) If certification is granted, the certification will be
published in the Federal Register and will identify the date on which
the State established its qualifying capital counsel mechanism.
Certification is a final determination by the Attorney General that the
State meets the statutory requirements for certification. There is no
authorization or procedure for suspending, reconsidering, revoking, or
denying certification with respect to a State for which certification
has been granted.
Sec. 26.23 Severability.
If any provision of this subchapter, or the application of such
provision to any person or circumstance, is found to be invalid, that
shall not affect the validity of any other provision or application.
Dated: March 12, 2026.
Pamela Bondi,
Attorney General.
[FR Doc. 2026-05134 Filed 3-13-26; 8:45 am]
BILLING CODE 4410-BB-P
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</html>Indexed from Federal Register on March 16, 2026.
This is legal information, not legal advice. Laws vary by jurisdiction and change frequently. Always verify current law with official sources and consult a licensed attorney in your jurisdiction for advice on your specific situation.