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August 14, 2009

"Judges' Dissents for Death Row Inmates Are Rising"

The title of this post is the headline of this front-page article in today's New York Times. Here is a snippet:

In dozens of capital cases in recent years, appeals court judges, some of whom have ruled in favor of the death penalty many times, have complained that Congress and the Supreme Court have raised daunting barriers for death row prisoners to appeal their convictions, and in many cases the judges have taken on their colleagues.

“There is an increasing frustration among federal judges throughout the system,” said Eric M. Freedman, a critic of the death penalty who teaches on the subject at Hofstra Law School.  Mr. Freedman predicted that the level of dissatisfaction would increase.  “Judges are likely to have less and less patience for being hogtied by legalistic mumbo-jumbo,” he said, “which prevents them from reaching fair results.”

The law that generates much of the judges’ ire is the Antiterrorism and Effective Death Penalty Act of 1996.  Since its passage, the act has been cited in a half-dozen to two dozen dissents a year....  The law, championed by legislators who believed prisoners were abusing the federal appeals process, restricts federal court review of state court decisions in death penalty cases and puts strong limits on the ability of condemned prisoners to file habeas corpus petitions to get their cases reconsidered....

The dissents rarely have any practical effect in changing the outcome of the cases they address.  But Howard J. Bashman, an appellate lawyer in Philadelphia, said such dissents were often directed toward audiences to come: the next appeals court, lawmakers and academics.  “You have to think that these judges do have some valid reason for putting all this effort into the exercise than just feeling better about it after they’re done,” Mr. Bashman said.

In addition to being spot-on, Howard's comment leads to the interesting question of whether Democratic control of both Congress and the White House might possible lead to some changes to the Antiterrorism and Effective Death Penalty Act of 1996.  President Obama and his administration has been notably quiet on the topic of the death penalty, even though the pace of execution nationwide has picked up during his first year in office.

August 14, 2009 at 09:28 AM | Permalink


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Is it politically feasible to visit the death penalty when Craig Shirley, the man behind the Willie Horton ad and the swift boat ads against John Kerry, is so involved with the telling of lies about health care? It's a crazy world and it would seem the "deathers" would be interested in the death penalty, but that is probably too much to put on the political plate of the Dems right now.

Posted by: George | Aug 14, 2009 10:23:57 AM

Congressional action would be especially appropriate given that it was the activist judiciary, including an activist, 5-4 Rehnquist Court majority, that chose to interpret the key provisions of AEDPA to be especially restrictive on petitioners and federal judges---despite the fact that such interpretation was not necessary under the text and brought the statute into potential conflict with the constitution, contrary to the doctrine of constitutional avoidance.

(Yes, I'm still pissed.)

Posted by: Observer | Aug 14, 2009 10:29:53 AM


Given that state courts owe no deference to lower federal courts, how exactly is the SCOTUS interpretation of AEDPA unreasonable? I would rather see Teague revisited and loosen retroactive application of new rules than change how much deference lower federal courts owe state findings.

And I don't see Congress approaching this issue any time soon. They are doing enough other things that are unpopular that adding one that would make them look weak on crime just isn't in the cards.

Posted by: Soronel Haetir | Aug 14, 2009 11:44:00 AM

I was not talking about restricting clearly established federal law to decisions of the Supreme Court; I was talking about the interpretation of the contrary to/unreasonable application of standard to require federal courts---including the Supreme Court---to defer to incorrect interpretations of federal law by state courts. This turns the Supremacy Clause on its head and interferes with the autonomy of the judicial branch in saying what the (federal) law is.

I agree about Teague and new rules (another high point of Rehnquist Court activism); I also agree that Congress will probably do squat.

Posted by: Observer | Aug 14, 2009 12:54:41 PM

"...to defer to incorrect interpretations of federal law by state courts."

Incorrect in whose opinion?

We can operationally define the Supreme Court's answer to a question to be the "correct" one. In Justice Jackson's memorable characterization, they are not final because they are infallible but rather infallible because they are final.

But the Supreme Court cannot and does not take the vast majority of cases. When the state courts and the lower federal courts disagree, we really do not know who is "right." Is there any reason to assume the federal court of appeals' answer to a question not resolved by the Supremes is any better than the state supreme court's? Certainly not here in the Far West, where our federal court of appeals is an ongoing train wreck.

The essence of the so-called deference standard is simply a modified rule of res judicata. The moving party's claim is denied on the ground that it has already been litigated and resolved against him, but the rule is modified in that a clearly wrong judgment will not have that effect.

This rule does not violate Article III for the reasons explained in my law review article at 98 Colum. L. Rev. 888. The Supremacy Clause speaks only to the supremacy of federal law, not to the supremacy of one court's interpretation of federal law over another's.

Posted by: Kent Scheidegger | Aug 14, 2009 7:12:55 PM

Kent and Soronel, the piece you are missing is that state judges, usually, are elected and vulnerable to removal from their positions if they make a legally correct but politically unpopular decision in a capital case. (see the discussion in Minn v White about the McVey case, it is not fanciful) I made a motion to vacate a death sentence due to blatant jury misconduct, (two jurors meeting separately in a room during jury deliberation to pray about the verdict). The editor of our paper was sure the motion for a new trial would be granted, but it wasn't.

Then, when cases get to federal habeas we are laboring under a deferential standard.

None of our state judges have clerks and even I have sympathy for them when they are confronted with post conviction motions , usually made very complicated in response to prosecutors trying to stretch the envelope.
One of two things normally happens. A very poor and sketchy order denying relief is drafted, which is given federal deference. Or, more commonly, the judge simply tells the attorney general to draft the judge's order denying relief and the judge then just signs the order, typos and all, and the AG's order is given deference. (I had one case where the attorney general inadvertently omitted reference to two claims and the judge signed the order as is. I had to request that he include in his order a reference to two serious issues.

The basic problem is that state judges , at least in NC , are not, in my opinion, giving protection to a defendant's federal constitutional rights, and then the federal judges are deferring to the state resolution.

bruce cunningham

Posted by: bruce cunningham | Aug 15, 2009 8:34:41 AM

The piece you are missing, Bruce, is that federal judges with life tenure can make legally incorrect decisions to substitute their personal opinions for the law enacted by the people through the democratic process.

The problem we saw all the time, especially here in the Ninth Circuit, was that federal courts would wrongly overturn correct state court decisions, and the Supreme Court could not possibly take all the cases. It still happens after AEPDA, but not quite as much.

There is no perfect solution. AEDPA is a compromise. The Senate rejected both Biden's amendment to preserve de novo review and Kyl's amendment to make the state judgment res judicata. It's the best we are likely to get for a long time to come.

Posted by: Kent Scheidegger | Aug 25, 2009 1:34:28 PM

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