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March 4, 2021

Making the case for repealing AEDPA ... and a reminder that "Joe Biden was one of the most vocal critics of the AEDPA’s habeas provisions"

I have lately been giving thought to the need for Congress to give more attention to the need to reform the ever-ugly and ever-litigated Armed Career Criminal Act (ACCA). But Radley Balko has this new Washington Post piece, headlined "It’s time to repeal the worst criminal justice law of the past 30 years," effectively reminding us that another lousy and clumsy piece of federal legislation (also starting with an A)  should be getting a lot more attention.  Here are excerpts, ending with a useful reminder of an important bit of history:

Under our system, when a state violates the constitutional protections of a fair trial, the federal courts are required to intervene.  The right to judicial review of an unlawful detention, also known as the writ of habeas corpus, is enshrined in the Constitution and dates back to 13th-century England.

But in 1996 Congress took a chisel to habeas corpus with the Antiterrorism and Effective Death Penalty Act (AEDPA).  Attorneys who represent people challenging their convictions, such as Mississippi’s Humphreys McGee, say the AEDPA and the Supreme Court rulings that followed have suffocated federal review. “It’s been a 25-year thicket of real through-the-looking-glass s---," McGee says. And the law’s repeal or reform is long overdue.

The AEDPA came several years after a spike in crime that began in the early 1980s and peaked around 1991.  By the time the AEDPA became law, crime rates were in the first few years of a 20-year free fall.  But the two major parties were in a frenzied competition over who could look toughest on suspected criminals.  The bill also came shortly after the Newt Gingrich-led “Republican Revolution,” a movement built on law-and-order rhetoric and promises to devolve more power to the states.

At the same time, though, early DNA testing had begun to show the criminal justice system was far more fallible than commonly thought.  The technology was young — by the end of 1995, DNA had exonerated just 37 people.  But even then, those cases raised questions about the reliability of forensic evidence and eyewitness testimony, and the behavior of police and prosecutors . Innocence Projects sprang up around the country, and law schools established clinics to seek out other bad cases.  According to the National Registry of Exonerations, in the 213 years before the first DNA exoneration in 1989, the United States saw a total of 418 exonerations.  In the 32 years since, there have been 2,733.  Yet at the same time DNA should have forced us to confront the shortcomings of the criminal justice system, the AEDPA all but slammed the federal courthouse door closed on the wrongly convicted.

The AEDPA’s most destructive provision is arguably its deference to state courts.  Previously, a federal court could review constitutional claims without considering state courts’ previous rulings.  The AEDPA requires federal judges to defer to state courts even when they believe those courts are wrong. In fact, the Supreme Court has essentially ruled that, to be overturned, a state court ruling must be so unreasonable that its judges are unfit to sit on the bench.

Even on the rare occasion a federal court might make that finding, the AEDPA also imposes a gantlet of deadlines and procedural barriers.  The law is so complicated, even seasoned post-conviction attorneys say they’re often flummoxed by it.  This, they say, is by design. “The goal of AEDPA is to avoid adjudicating these cases on their merits,” says McGee. “The law is loaded with tripwires that let federal judges throw out claims without bothering to consider them.”...

“AEDPA abdicated constitutional rights to the states just as states were requiring more deference to their lower courts,” says Richard Bourke, a post-conviction attorney in New Orleans.  “So you get this quantum of deference that grows exponentially at each level, to the point where constitutional rights are now mostly in the hands of elected, low-level circuit court judges.”

And there’s one additional layer of iniquity: Except in death penalty cases, indigent defendants lose their right to an attorney once in post-conviction.  So just when the wrongly convicted are most likely to discover evidence that could free them, they not only face a procedural minefield even a seasoned lawyer would struggle to navigate, nearly all of them also face it alone.  Consequently, for every AEDPA injustice exposed by post-conviction lawyers, countless others may never be known.

In a series of columns over the next several months, I’ll look at how the AEDPA was passed, how it works in the real world, the injustices it has wrought and what we can do to fix it.  The good news is that much of this can be fixed.  Congress could repeal or reform the AEDPA tomorrow.  And for all the criticism of his criminal justice record — most of it justified — Joe Biden was one of the most vocal critics of the AEDPA’s habeas provisions.  The then-senator warned of dire consequences if those provisions passed. History has proved him right.

March 4, 2021 at 09:55 AM | Permalink


I think the summary of the history is debatable. Prior to the 1930s and the incorporation of the Bill of Rights against the states, federal habeas review was very limited. And the requirement for federal courts to intervene is not in the Constitution. On the civil side, normally if a case was heard in state courts, the only federal court that can review federal constitutional issues is the Supreme Court.

While its called habeas corpus, most of Chapter 154 is not the common law writ of habeas corpus enshrined in the Constitution. Instead, it is a special form of collateral review. In the years prior to AEDPA, there was a big conflict about who should get to resolve constitutional issues for state courts that have not been resolved by the U.S. Supreme Court. State courts took the position that the Constitution does not make state courts inferior to lower federal courts, and that they had the same power to resolve constitutional issues as federal trial or appellate courts. AEDPA requires that there be something more than a disagreement between federal and state judges about the proper way to interpret the Constitution.

AEDPA also, to some extent, recognizes what most appellate practitioners know -- that the result of a case on appeal can depend on the luck of the draw as to the judges that sit on the panel. Courts rarely grant en banc review and state supreme courts and the U.S. Supreme Court only take a small number of cases. When multiple judges have previously reviewed a case in good faith and found no problems, a 2-1 split of opinion about the right interpretation of the Constitution in front of the three most pro-defendant judges in a circuit should not be enough to get relief.

To use my own circuit as an example, while today it is a relatively conservative court, back in the 80s and early 90s, the circuit had a reputation for very closely scrutinizing closing arguments in capital cases. There were several cases in which they reversed death sentences for closing arguments using a standard that was much less forgiving than the standard that the U.S. Supreme Court was using. By expressly requiring the lower federal courts to tie their grant of relief to the standard created by the U.S. Supreme Court, AEDPA put an end to this failure to follow governing precedent.

And, of course, habeas is a one-way ratchet. If a state court is erroneously interpreting the Constitution to give more protections to criminal defendants than it should, then habeas never comes into play. It is only when a state court is narrowly interpreting the Constitution that habeas is a possibility.

Posted by: tmm | Mar 4, 2021 12:37:28 PM

A 2-1 split by the best panel a defendant can find would likely get reversed by the US Supreme Court anyway. Instead, you have a system stacked against defendants in which there is little chance to create badly needed pro-defendant precedent, and cases in which defendants lose on AEDPA grounds are routinely cited as precedent by courts that are supposedly tasked with reviewing the issue de novo. When combined with the reality (as shown by many studies) that elected judges are very much affected by the enormous pressure for them not to rule in favor of an unpopular defendant, the need for federal de novo review is very strong. There is case after case where a defendant is denied a fair trial, but because the exact circumstances were never addressed by a Supreme Court decision on materially indistinguishable facts, they are condemned to stay in prison for very long periods of time. And in many cases it is not the case that "multiple judges have previously reviewed a case in good faith and found no problems", on both prongs. The indisputable pressure of judicial elections undermines the good faith prong, and in many cases problems are found but the defendant still loses on the judges' own sense of harmless error, or on other impediments, even though the court agrees the trial or police procedure should have been conducted differently and had that happened who knows how the trial would have developed.

Furthermore, as a case moves through the system, the defendant faces an ever growing burden as the court first views the evidence in the light most favorable to the guilty verdict, then grants strong deference to the district or trial courts, reversing only for abuse of discretion, clear error, or the like. By the time the case gets to Federal Court, you're likely to hear rhetoric about the large number of judges that "found no problem", but that falsely implies that they all reviewed everything de novo. If the interrogation or trial had been conducted properly, there may never have been a guilty verdict to receive deference in the first place, and so it goes on. It really shouldn't be too much to ask that if a government wants to deprive someone of his or her freedom and saddle him or her with a life-long criminal record, that it be put to the burden of defending its case at each level with far less deference than it receives currently.

In addition to the extraordinarily cruel obstacles of deference the law puts in the way of a defendant getting a clean ruling on the merits, and on the horrible anti-defendant skew it creates in the case-law, the time limits and ban on successive petitions are barbaric when it comes to non-capital cases. There is simply no incentive for a non-capital defendant to purposely withhold potentially winning arguments to getting out of prison, and no justification whatsoever for preventing him or her from raising a colorable new argument in successive petitions, regardless of whether it could have been raised before. Any claim raised that stale memories or witnesses make a late claim unfair can and should be adjudicated on a case-by-case basis using a balancing test fair to both sides. It will be the rare case where a non-capital defendant purposely delayed a habeas claim in order to gain some tactical advantage, and the state has no valid interest in denying him or her an opportunity to receive an adjudication of the claim on the merits.

Posted by: Poirot | Mar 4, 2021 9:03:38 PM

You say there is no justification for requiring the claim to be brought on the first petition, yet I can think of one with little effort. Why should the state have to continually dredge through old case files to answer the latest motion? As tmm says constitutional habeas is a very limited thing.

Posted by: Soronel Haetir | Mar 5, 2021 7:11:20 PM

High minded stuff. In fact the reason most habeas petitions are denied is that they are filed by pro se petitioners who aren't aware of AEDPA's (difficult to understand) deadlines. The whole statute is a morass of tripwires and roadblocks designed to prevent federal courts from reviewing state court decisions and allowing states to keep people in prison despite the unconstitutionality of their trial.

Posted by: John | Mar 7, 2021 11:33:18 PM

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