Mimesis Law
16 June 2019

It’s Not a Bad Thing that AEDPA Upholds State Convictions

May 13, 2016 (Mimesis Law) – Judicial review of imprisonment is now such a bedrock principle that the thought of the government secretly imprisoning people is scary enough to make a whole film about. Popular culture is filled with other references about an individual’s rights when arrested, such as getting one phone call. On the legal side, there are safeguards such as the initial appearance and bail, which are mechanisms aimed at freeing people from custody—even if there are criminal charges pending.
Another, quite ancient mechanism for this is the writ of habeas corpus. It is where an inmate can judicially challenge the executive’s right to imprison that person. It’s a right traceable back to the Magna Carta, a document seen as a pillar of the Anglo-Saxon law. While not everyone lowers their voice reverently when speaking about the Magna Carta, that is an issue for another day. By the time of the American Revolution, the so-called Great Writ had already taken on mythic status.

But American prisoners held incognito is a relatively rare event nowadays. So much so that when the veil of secrecy is lifted, it becomes a major press story. Despite the rarity of such cases, writs of habeas corpus can operate as a backstop against governmental misconduct. Of course, being held incognito usually includes cutting that person off from outside contact; otherwise, the inmate will communicate with someone who will eventually file a writ. But as Hamdi illustrates, the Writ can still occasionally be useful to challenge executive detention.

Although we might applaud the majesty of the law in the Hamdi case, it’s the outlier because that type of use of the Great Writ is relatively rare in that context. The reality of what the Writ is used for is something quite different than challenging executive detention. In fact, until 1867, state prisoners could not file a writ in federal court challenging state incarceration.

Here’s what that first part of that statute says:

The Supreme Court, a Justice thereof, a circuit judge, or a district court shall entertain an application for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States.

Initially, federal courts construed the statute rather narrowly, more or less requiring the state conviction to be void. Then in the 1940s, the Supreme Court liberalized the writ, stating that

… the use of the writ in the federal courts to test the constitutional validity of a conviction for crime is not restricted to those cases where the judgment of conviction is void for want of jurisdiction of the trial court to render it. It extends also to those exceptional cases where the conviction has been in disregard of the constitutional rights of the accused, and where the writ is the only effective means of preserving his rights.

So, a writ of habeas corpus as a method to challenge state convictions based upon instances of constitutional violations—no matter how slight—is a relatively recent invention of the Court. Only in the second half of the statute’s life has it been interpreted that broadly. And that outcome is mostly the legal by-product of the Progressive and New Deal movements. Although a good deal of that liberalization turned out to be justified later by the difficulty presented by the active resistance of Jim Crow institutions against racial integration. Particularly those dead-enders using the criminal justice system to legitimize oppression.

In 1995, the Bureau of Justice statistics released its study on federal habeas corpus. Some of the paper’s findings included that death penalty cases made up only 1% of the cases; habeas cases made up about 4% of the court’s caseload; it took about five years from the state conviction to filing habeas; only about 2% of the time did the petitioner get any relief, including remand back to state court; and about two-thirds of the petitions were dismissed for procedural reasons. An interesting question unasked by the paper is if the 1% of death penalty cases were disproportionately represented in the 2% of cases granted relief.

This 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 as to return the writ to a state prior to the 1940s. AEDPA was focused on the procedures under which state convictions were reviewed, rather than the types of cases that could be reviewed. In other words, the magnitude of the constitutional violation is immaterial to the availability of the writ, even under AEDPA.
Before AEDPA, an inmate’s chance of habeas relief was low. There were already tremendous procedural barriers that most pro se petitioners could not navigate. And even if they received a merits review, inmates were still quite likely to lose. State convictions were generally final, despite the additional layer of review.

Although, under AEDPA, the standard under which state court decisions were reviewed was tightened considerably. So, a petition post-AEDPA is probably less likely to get merits-based relief. But, again, it remains legally possible for an inmate to get relief on any constitutional violation, without regard to its severity.

Against this background, Liliana Segura’s new article at the Intercept is curious. It is filled with quotes from judges and inmates bemoaning AEDPA. She’s mostly distracting us with stories of innocent people. That all makes for a sympathetic story, but it neglects to discuss that relief under 28 USC 2254 has always been relatively rare. And that the review of state convictions is a rather novel American invention.
Pre-AEDPA, there were only about 100 people, in the entire United States, in a year, having their petitions granted, which does not account for any reversals of the decision on appeal. And some of those are likely conditional writs, allowing the state to re-litigate the case. While the BJS study does not tell us for sure, because 40% of the petitions complain about trial-related errors, it seems likely conditional writs would be a common remedy. So, it’s not like 100 people were walking out of state prisons every year vindicated as innocent.

My co-contributor, Josh Kendrick, largely faults AEDPA due to the change in the standard of review:

Nobody cares much about speedy trials, but damn can they get behind speedy executions. But those shortened time limits are not the real evil found in AEDPA. It’s the standard of review over state decisions.

The important word in there is “unreasonable.” It’s okay for a state court to screw up, as long as it was not unreasonable. Take a wild guess how often the federal courts find the state courts acted unreasonably? Right. Pretty much never.

The federal courts have little oversight over state courts now. The very independence required to have meaningful review of state criminal convictions gave way to deference. Replacing independence with deference effectively makes the Great Writ useless.

This complaint appears to be shared by Judge Kozinski, who said “We now regularly have to stand by in impotent silence, even though it may appear to us that an innocent person has been convicted.” It’s understandable that a judge would be frustrated when a statute thwarts judging. No one likes someone else telling us how to do our job, especially when the President and Senate have asked you to do it.

In contrast to Judge Kozinski, Judge Kopf found that change in the standard of review to be the most important and favorable:

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. See, e.g., Charles Doyle, Federal Habeas Corpus: A Brief Legal Overview, at pp. 2-6 Congressional Research Service (April 26, 2006) (prior to AEDPA, it “was said that federal habeas was ‘the most controversial and friction producing issue in the relation between federal and state courts. . . . Commentators [were] critical, . . . federal judges [were] unhappy, . . . state courts resented [it], . . [and] prisoners thrive[d] on it as a form of occupational therapy. . . .”).

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.

To re-state the obvious, sometimes innocent people do get convicted. And sometimes federal habeas might be the only place where that claim can be fairly litigated. But before AEDPA, there weren’t a lot of people walking out of prison with a federal writ in their hand. And there is nothing inherently unjust with making a state judge’s reasonable interpretation of the law final.

3 Comments on this post.

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  • Mike
    16 May 2016 at 1:59 pm - Reply

    I’m sad that no-one read this all the way to the end to notice the final paragraph is printed twice.

    • shg
      16 May 2016 at 3:40 pm - Reply

      Don’t be sad. It’s easily fixable.

  • The Limits of Infallibility | Simple Justice
    18 May 2016 at 6:40 pm - Reply

    […] up, arguing that it reflected a political judgment that habeas can’t go on forever.  Andrew King provided a deep dive into the history of habeas, and argued that our current adoration of innocence distorts our […]