Fault Lines
28 April 2017

AEDPA – Because Getting It Over With Is The Most Important Thing

May 18, 2016 (Mimesis Law) — People who know me roll their eyes when I say it, and folks who read stuff I’ve written (here, for instance, or here) yawn, but really, I don’t care about innocence.

Like most criminal defense lawyers who’ve been at it for a while, I’ve represented my share of factually innocent folk – wrongly targeted, maybe wrongly charged, too often wrongly convicted.  Spare me.  Sure, it’s especially satisfying, psychologically rewarding to get the exoneration when you can.

But I’m not an innocence project.  I’m a criminal defense lawyer.  I’ll do what I can for the factually guilty as readily as for the factually innocent.  That’s how this works.

Which brings me, in a roundabout way, to AEDPA, the Anti-Terrorism and Effective Death Penalty Act of 1996 and what it did to what’s regularly called (mostly with ironic tongue firmly planted in cheek) The Great Writ.  There’s been a lot of talk about it lately here at FL. First there was Josh Kendrick explaining that AEDPA gutted habeas (“castrated” is the word he used) and that’s the way the voters wanted it.

When the Republicans and Democrats were jockeying to be the toughest on crime, taking away all these rights got votes. From the people. Why was it so important for politicians from both sides of the aisle to be the toughest on crime? Because the people wanted that. People vote. People want to be antiterrorist. People hate those appeals dragging on. People hate to see criminals go free. People are politics.

Who killed habeas corpus? You killed it. The citizenry. Bitch about politicians all you want, but they are only giving you exactly what you asked for.

Judge Kopf took Josh to task.  Of course enacting AEDPA was political.  Enacting laws pretty much always is.  But in fact, “AEDPA did a number of very sensible things.”  There’s that almost entirely inflexible one-year statute of limitations.   There’s the requirement that every habeas claim must first have been raised in state court.  There are the rigid restrictions on habeas courts holding hearings and taking any evidence that wasn’t presented first in state court.  There’s the almost complete prohibition on second or successor habeas petitions.

And then there’s the biggie.

Perhaps most importantly, the Act also mandated a new standard of review for evaluating state court applications of constitutional law and determinations of fact. The new standards required federal courts to give great deference to state decisions. The Act prohibits federal judges from granting relief for any claim adjudicated on the merits in state court unless the state decision rejecting the claim is 1) “contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States,” or is 2) “based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.”

Good thing, Judge Kopf says.

The federal district courts were never intended to give single federal district judges the power to frequently “overrule” the decisions of the state courts, and that is most particularly true for the state Supreme Courts.

And then there was Andrew King who can’t think of why federal courts, rather than state courts, should have the final word on what the federal Constitution means.

Judge Kopf is quite right, particularly when reviewing habeas corpus in a historical context. No doubt that the AEDPA standard of review is more exacting. But it’s a standard that focuses on legal interpretation of constitutional law. If reasonable minds can differ about those interpretations, then why should a district judge get the final say? It brings to mind Justice Jackson’s quote “We are not final because we are infallible, but we are infallible only because we are final.”

In the case of AEDPA, there is nothing inherently wrong with choosing someone other than the final judge have the final interpretation of the law. The final say can be legally something other than the temporally last say. Both state and federal judges can indeed be fallible but someone has to be final. (Hello Jeff Gamso.) And the state judges can just as easily be the final interpreter of the law.

There’s a surface appeal to that sort of argument.  I mean, hell, if reasonable minds can disagree, why shouldn’t the state’s reasonable ones count?

Thing is, it’s never that simple.  Here’s the test as articulated in the 6th Circuit by an assistant Ohio Attorney General explaining to a panel of federal judges why my client on death row shouldn’t get relief and how I responded.  (I’m paraphrasing; it’s close enough.)

AEDPA as interpreted by the Supreme Court says that you federal judges have to defer to what the state courts decided unless their decision was one that no reasonable jurist anywhere could reach.

What he’s telling you, I said in rebuttal, is that unless the state judges are all, every one of them, either psychotic or delusional, you can’t overrule them.  No matter how wrong they are.

That doesn’t leave much room.  And it’s a problem.  Because state judges are in fact not as well situated as federal judges to determine what the U.S. Constitution means and how it should be applied.  They have countervailing interests (including, often, appearing sufficiently Tough on Crime™ to get reelected).

But it’s actually worse than that.  Because there’s another nearly insurmountable hurdle.  Habeas relief can only be granted under AEDPA when the psychotic state judge was delusional about the application of a bit of federal constitutional law that is “clearly established” by the Supreme Court.  There is, I’m constrained to say, very little that the Supreme Court has established clearly.

Take, for instance (and here I return to the subject of innocence), the question of whether the Constitution prohibits the execution of a factually innocent person.  You might think so.  You might say, for instance, that surely it would be a punishment cruel and unusual, and therefore in violation of the 8th Amendment which prohibits such things, for the government to kill someone who didn’t do it.  And it is in fact true that five members of the Supreme Court have said just that.  So it’s clearly established, right?

Wrong.  Because while there’s never been a case where five of the justices said it.  In fact, we’ve yet to have five who are on the court at the same time and have previously said it.  So the principle is not “clearly established.”  Hell, it’s not established at all.

And since the Court spends a large part of its criminal docket explaining that the protections of the Constitution don’t really apply to anyone. . . . (Consider the rule that to effective invoke your 5th Amendment right to silence when police want to interrogate you, it’s not enough to remain silent.  In Berghuis v. Thompkins, the Supreme Court said that the only way to have the actual right to remain silent is to speak.  You have to say to the cops that you won’t say anything to them.)

Finally, when the judge is psychotic and the Supreme Court actually spoke – and did so clearly – in the habeas petitioner’s favor, there’s the matter of the hurdles.  The ones that were specifically designed to make it harder for petitioners, particularly those without lawyers, to get into federal court in the first place.

Of course, if the goal is simply to ensure that what the state court did won’t be undone by the federal courts, if the goal is to give Andrew King the finality he so desires, then AEDPA is cool.

But if we want a system that’s fair – even if it means sometimes being fair to guilty people – then AEDPA’s a real problem.

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