Mimesis Law
28 February 2020

Capital Habeas is on the Fast Track

Apr. 5, 2016 (Mimesis Law) — The federal habeas fast track is now back on track, continuing its 20-year journey. Kent Scheidegger explained the history of Section 154 here:

The story goes back to the 1980s.  A committee of the Judicial Conference chaired by retired Justice Lewis Powell found two big problems in the collateral review of capital cases.  Some states did not provide lawyers for death row inmates on state collateral review.  The Constitution requires state-paid lawyers for the first review of the case on the trial record (direct appeal) but not for the second round where new evidence can be brought in (habeas corpus or a substitute for it).  The second problem was that a third review of the case in federal court — federal habeas corpus — was taking far two long [sic]. * * *

The Powell Committee decided to address both issues with one measure.  In return for states providing qualified and adequately funded counsel on state collateral review (as most states were already doing), the states would receive certain benefits in federal habeas corpus to speed up review of the cases, i.e., the fast track.

When Congress enacted the Powell Committee reforms as part of the habeas portion of the Antiterrorism and Effective Death Penalty Act of 1996, it boosted the benefits to the states.  In particular, it imposed time limits on the federal courts to resolve the cases.  Federal district courts got a tight deadline of 180 days from the filing of a capital case to final disposition. * * *

The Antiterrorism and Effective Death Penalty Act (AEDPA) was sort of the Patriot Act of its day, in that it collected a number of proposals that had failed to gain traction, until an act of terror. In the case of AEDPA, about a week after the Oklahoma City Bombing, Senator Dole introduced the bill in the Senate. A year later, President Clinton signed it into law. And we’ve lived under it ever since.

AEDPA had an enormous impact on federal habeas. Among the provisions of the Act, it statutorily imposed the bar on second or successive petitions; it dramatically raised the standard for relief; and it created the fast track process. To put a fine point on the fast track process, it means that states get to execute inmates quicker, if they pay for post-conviction counsel.

Kent continues his historical explanation:

Horrified by this tight deadline, federal courts gave the requirements for qualification an extremely restrictive interpretation, and not a single state was held to qualify.  The Supreme Court failed to review these dubious decisions.

In 2006, Congress amended the law.  It relaxed the deadline on district courts to 450 days (a year and 3 months).  It also removed the decision on whether a state qualified from the courts that would be subject to the deadline (in light of their obvious bias and conflict of interest) and assigned it to the Attorney General with review by the D.C. Circuit.  Finally, Congress directed the Attorney General to promulgate regulations to establish a certification procedure.  Congress did not authorize the Attorney General to make regulations on the substantive requirements for certification.  It expressly provided that the requirements in the statute itself are the only requirements.

 TL;DR: Congress got tired of the courts dragging their feet, so they threw the administrative decision making to the Attorney General. But then Kent tells us that it was not only the courts that were apathetic:

For the remaining two years of the Bush Administration, DOJ dragged its feet and only promulgated the regulations at the end of the term.  The capital defense bar challenged them in federal district court, maneuvering the case before the very judge who had erroneously held that California did not qualify earlier, one of the judges that Congress had moved the decision to the Attorney General to get away from.  Instead of appealing the erroneous injunction, the Obama DOJ rescinded the regulations and dragged its feet establishing new ones.

Arizona finally got tired of waiting and applied for certification without regulations.  Texas followed suit.  When DOJ would not act, Arizona went to the D.C. Circuit with a petition.  DOJ then belatedly promulgated the regulations, and Arizona dismissed its petition.

So, outside of Congress and the states, no one really seems to want to make the fast track option a reality. Apparently forced to do so kicking and screaming, in 2013, the Attorney General finalized the rules regulating the certification procedures. In response, capital defender groups filed suit to enjoin the regulations. And a California District Court agreed and stayed the regulations. Typical dog bites man story. The only real surprise here is that the Ninth District reversed a pro-defendant habeas-related decision. It was due to a lack of standing, but still a surprise.

There are principled reasons to be against AEDPA. Scott Greenfield explains some here, here and here. The filing time limit, in conjunction with the one-petition rule, can procedurally negate what could be a meritorious claim. Because of this obvious harshness, the Court has been willing to tinker occasionally around the edges by allowing either an untimely or second petition because of a claim of actual innocence or a dilatory attorney. And there has been some sympathy for allowing a second claim when a Brady violation is later discovered. Plenty of other cases, though, simply never get the past procedural barriers.

Because the state post-conviction petition is generally where all the supplemental evidence is submitted into the record, the procedures used by the state to handle petitions are important. For example, most of the evidence of ineffective assistance of counsel occurs outside the trial record. In those cases, a claim will usually only be successful if the trial record is supplemented. Inmates who have attorneys help them prepare their petitions and marshal additional evidence are in a better position than those that do not.

The fast track provision tacitly recognizes this reality by encouraging states to provide a lawyer. But a lawyer alone is insufficient. The fast track provision does not mandate that states provide discovery, an evidentiary hearing, or even meaningful findings of facts and conclusions of law. This means you get an attorney to prepare your petition for summary denial. Neat. But you’ll feel better knowing that you had an attorney when you’re writ is denied without stated reasons.

This sort of checkbox-style litigation is carried forward into federal habeas where procedural landmines wait to end the case. Ultimately, federal habeas is about the process, and only incidentally about the Constitution, and almost never about the merits. As Justice Scalia wrote in his dissent in the Troy Davis case,

This Court has never held that the Constitution forbids the execution of a convicted defendant who has had a full and fair trial but is later able to convince a habeas court that he is “actually” innocent. Quite to the contrary, we have repeatedly left that question unresolved, while expressing considerable doubt that any claim based on alleged “actual innocence” is constitutionally cognizable.

It’s hard to imagine any of the Framers skating so close to saying an apparently innocent person can be executed constitutionally. The Great Writ indeed.

Although there is plenty about AEDPA of which to be critical, the fast track process is not one of them. First of all, the whole underpinning of Gideon is that having an attorney defend you is better than not having one. So the fast track represents a real improvement, even if an attorney alone may be insufficient to successfully vindicate the post-conviction process.

Second, there is no systematically beneficial reason for excessive delay. Delay, to some degree, is expected. Habeas litigation is more like civil than criminal litigation. And civil litigation is more of a slow march to a resolution, with more and more evidence being uncovered with each discovery request. So, if the case has any discovery or requires a stay to return to state court for exhaustion, the case can legitimately take more than six months to litigate.

On the other hand, deadlines tend to create movement and sharpen focus. Although few attorneys would ever admit to being that slothful lawyer who persistently waits until the deadline to file, we all know that they exist. Moreover, attorneys for death row inmates have an incentive to slow the case down—the faster the case is resolved, the faster their clients die. Plus, the longer the client stays alive, the greater the chance that a game-changing decision like Atkins will be decided. No attorney wants to have the last client executed before a moratorium.

A zealous attorney serves the client best by keeping the client alive as long as possible. No one else involved has such a strong incentive to stall the case. Without reading the Powell Commission report, it’s a fair guess that was a top reason for the recommendation. And in the occasional situation where a trial judge engages in “Irish Democracy” and refuses to act on the case, the statutory deadline ensures all inmates are treated fairly.

In sum, the fast track program expands access to counsel without diminishing any substantive or procedural rights. You can maintain principled objections to AEDPA, without opposition to fast track. Certainly, the goal of the fast track is to get the inmate to the execution faster. But the execution is the inevitable result of the capital conviction.

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  • It’s Not a Bad Thing that AEDPA Upholds State Convictions
    13 May 2016 at 9:09 am - Reply

    […] brings us to the 1996 Antiterrorism and Effective Death Penalty Act, which was discussed here. In sum, Congress slightly reversed some of the judicial liberalization of the writ, but not so far […]