Comment in Opposition, RIN 1105–AB80, Certification Process for State Capital Counsel Systems, 91 Fed. Reg. 12525 (Mar. 16, 2026), Docket (DOJ-OAG-2026-0034)

The National Lawyers Guild ("NLG") submits this comment in strong opposition to the Department of Justice's proposed rule amending 28 CFR Part 26 ("Proposed Rule"). The NLG is the nation's oldest and largest progressive bar association, and our members across the country regularly represent individuals fighting capital punishment. Hence, the Proposed Rule directly affects our interests.

Before addressing the Proposed Rule's specific legal defects, the NLG writes to situate those defects in their proper context: capital punishment in the United States has never operated fairly, and this Proposed Rule will amplify its unfairness. The NLG has consistently opposed capital punishment as incompatible with human dignity and equal justice. People on death row are disproportionately Black, brown, and poor, and the death penalty has unequally targeted them.

The procedural protections this rule would dismantle are crucial to any notion of fairness in state-level post-conviction litigation. By eliminating federal competency and compensation standards for state-appointed capital counsel, removing the timeliness requirement for the appointment of that counsel, and rendering certifications permanent with no mechanism for revocation, the Proposed Rule will predictably result in states obtaining expedited federal habeas review, while providing condemned prisoners with inadequate representation.

The rule is also constitutionally and procedurally defective in ways the Department does not acknowledge. By vesting in the Attorney General-the nation's chief law enforcement officer-sole authority to certify the adequacy of states' mechanisms for provision of counsel in capital post-conviction proceedings, the statute and this rule create a structurally biased decisionmaker. See, e.g., Caperton v. A.T. Massey Coal Co., 556 U.S. 868 (2009); Marshall v. Jerrico, Inc., 446 U.S. 238 (1980). Concentrating in the Executive Branch the effective power to activate or withhold procedural rights in federal habeas proceedings also implicates separation-of-powers principles that reserve to the judiciary governance of its own proceedings. See U.S. Const. art. III, § 2. The Proposed Rule amplifies these embedded constitutional infirmities by compressing the decision timeline to 90 days, eliminating notice-and-comment on state applications, as well as removing any post-certification review. These changes truncate dramatically the record available to any reviewing court and further insulate the Attorney General's determinations from meaningful scrutiny.

Moreover, the Proposed Rule's elimination of mandatory public notice and comment on individual state certification requests is independently fatal. Notice and comment is the primary mechanism by which defense attorneys, civil rights organizations, affected prisoners, and the public can present evidence that a state's capital counsel system fails in practice. State officials will not volunteer any evidence that lawyers do not meet competency standards, compensation levels prevent the enrollment of competent counsel, or substantial delays in the appointment of counsel undermine their ability to provide adequate representation. Chapter 154 clearly requires a state's mechanism to operate the way it purports to. The Department's proposal to simply review a state's laws on their face improperly removes any burden from the state, even though Chapter 154 demands a meaningful quid pro quo for a state to obtain the benefits of expedited federal habeas proceedings.

The Department's claim that this Proposed Rule is compelled by the text of Chapter 154 is a post-hoc rationalization for a policy choice. The President and Attorney General have made clear that they wish to accelerate executions in this country. That choice is one the NLG categorically rejects. The NLG urges the Department to withdraw this Proposed Rule in its entirety.

Respectfully submitted,

National Lawyers Guild