News / The Fair And Just Journal

A proposed Department of Justice rule, issued amid the Trump administration’s broader effort to expand and accelerate use of the death penalty and revive failed “tough on crime” policies, would weaken oversight of state capital post-conviction systems, reduce transparency, and increase the risk of wrongful executions.

Executive Summary

• The Department of Justice has proposed a rule that would make it significantly easier for states to qualify for expedited federal habeas review in death penalty cases.
• The proposed rule weakens critical safeguards designed to ensure states that seek expedited federal habeas review provide competent and adequately funded state post-conviction counsel to individuals sentenced to death.
• The rule reduces transparency by eliminating public notice and comment requirements for state certification applications.
• The proposal risks reducing the Attorney General’s review of state certification applications to a largely ministerial, rubber-stamp approval process with minimal scrutiny.
• Expedited and narrowed federal review increases the danger that constitutional violations, prosecutorial misconduct, or wrongful convictions will go uncorrected.
• Fair and Just Prosecution opposes the rule because it prioritizes speed and finality over fairness, accuracy, transparency, and public trust in the integrity of the justice system.

Prosecutors Have a Duty to Pursue Justice

Prosecutors occupy a unique role within the justice system. Courts across the country, along with the American Bar Association’s standards for prosecutorial conduct, have repeatedly recognized prosecutors as “ministers of justice.” Their responsibility is not simply to secure convictions, but to seek justice while safeguarding the integrity of the judicial process.

Because prosecutors exercise extraordinary power over life, liberty, and public safety, they have a strong institutional interest in procedures that promote:

• fairness,
• transparency,
• reliability, and
• public legitimacy.

These obligations are especially critical in death penalty cases, where the consequences of error are irreversible.

Public Trust Is Essential to the Justice System

The legitimacy of the justice system depends heavily on public confidence in legal institutions. Research consistently demonstrates that when communities perceive legal authorities as fair and legitimate, they are more likely to:

• report crimes,
• cooperate with investigations,
• comply with court decisions, and
• support public safety institutions.

Conversely, diminished trust weakens cooperation and undermines the effectiveness of prosecutors, courts, and law enforcement agencies, making our communities less safe.

The Supreme Court has repeatedly recognized the importance of maintaining the appearance and reality of fairness in judicial proceedings, emphasizing that the justice system relies on public willingness to respect and follow legal decisions.

For this reason, changes to capital punishment procedures require careful deliberation and robust safeguards rather than efforts to accelerate executions at the expense of oversight and transparency.

The Proposed Rule Weakens Critical Safeguards

Under the existing framework, states seeking certification for expedited federal habeas review must demonstrate that they provide:

• timely appointment of counsel,
• competency standards for post-conviction attorneys,
• adequate compensation for counsel, and
• reasonable litigation expenses.

The current process also subjects states’ applications for certification to public notice and comment through publication in the Federal Register.

The proposed rule dramatically narrows those requirements. Instead of conducting meaningful evaluation of how state systems operate in practice, the Attorney General would only need to determine whether some mechanism exists and whether some competency standards have been adopted, without scrutinizing the effectiveness of the state’s processes.

The proposed rule also imposes a 90-day deadline for certification decisions, increasing the likelihood of rushed or superficial review of states’ applications.

The Rule Fails To Ensure Competent Representation

Capital post-conviction litigation is among the most complex areas of American law. Courts have repeatedly acknowledged the extraordinary legal and procedural complexity and factual difficulty involved in death penalty litigation.

Despite this reality, the proposed rule establishes no meaningful minimum competency standards for attorneys handling these cases. States would merely need to adopt some standard, regardless of whether it adequately prepares counsel for the demands of capital representation.

The proposed rule similarly fails to require:

• timely appointment of counsel, or
• adequate compensation for attorneys handling capital post-conviction cases.

Without sufficient compensation and support, states may struggle to recruit experienced attorneys, leading to delays, inadequate representation, and systemic dysfunction.

The Proposed Rule Reduces Transparency

One of the most significant changes in the proposed rule is the elimination of public notice and comment requirements for state certification applications.

Under the current framework, publication in the Federal Register allows:

• public participation,
• expert scrutiny,
• transparency, and
• informed oversight of state death penalty systems.

The proposed rule would remove these public accountability mechanisms entirely.

This change is particularly concerning because the individuals and organizations most familiar with the realities of state capital systems, including impacted individuals and post-conviction counsel, would lose an important opportunity to challenge inaccurate or incomplete state representations about how these systems function in practice.

Expedited Review Increases the Risk of Wrongful Executions

Certification under Chapter 154 of AEDPA provides states with substantially expedited and narrowed federal habeas review.

These accelerated procedures:

• shorten filing deadlines,
• limit petition amendments,
• impose strict court timelines, and
• reduce opportunities for full federal review of constitutional claims.

Federal habeas review serves as a critical safeguard against wrongful executions and serious constitutional violations. The Supreme Court has recognized its vital role in ensuring fairness and preventing “extreme malfunctions” within state criminal justice systems.

The risks are not hypothetical:

Weakening oversight while accelerating executions increases the likelihood that wrongful convictions and constitutional violations will go uncorrected and innocent people will be put to death.

FJP Position

Fair and Just Prosecution strongly opposes the proposed rule because it weakens accountability, reduces transparency, and undermines the integrity of capital post-conviction review.

The justice system’s legitimacy depends on procedures that are fair, transparent, and reliable, especially in cases involving the irreversible punishment of death.

Efforts to prioritize speed and finality over meaningful review threaten public trust, increase the risk of wrongful executions, and weaken confidence in prosecutorial institutions and the rule of law.

Key Takeaway

Capital punishment systems require heightened scrutiny, robust safeguards, and meaningful public oversight. Weakening those protections in pursuit of expedited executions risks irreversible injustice and undermines confidence in the legitimacy of the justice system.

Sources & Further Reading

• Berger v. United States, 295 U.S. 78 (1935)
• American Bar Association Criminal Justice Standards for the Prosecution Function
• Death Penalty Information Center data on prosecutorial misconduct and reversals
• Samuel R. Gross et al.,
  Rate of False Conviction of Criminal Defendants Who Are Sentenced to Death
  (PNAS 2014)
• Tom R. Tyler & Jeffrey Fagan,
  Legitimacy and Cooperation: Why Do People Help the Police Fight Crime in Their Communities?