Thomas Jefferson Was An Asshole: A Reply To Josh Kendrick On The AEDPA
May 9, 2016 (Mimesis Law) — I urge you to read Josh Kendrick’s well-written and provocative post regarding the Antiterrorism and Effective Death Penalty Act of 1996, known as AEDPA. Based upon an article written by Liliana Segura, Chris decries the “castration” of the federal habeas corpus remedy by AEDPA. In doing so, Josh liberally quotes and refers to Thomas Jefferson. Josh and Liliana hate the restrictions found in AEDPA, primarily those in 28 U.S.C. § 2244 and 28 U.S.C. § 2254. Josh and Liliana also feign shock that politics played a part in the adoption of AEDPA.
I have the following reactions to Josh’s post written after handling literally hundreds of habeas corpus cases including more than a few involving the imposition of the death penalty.
First, Josh you shouldn’t have relied upon Thomas Jefferson so much. He was an asshole who took a black slave as his mistress, but lacked the humanity to free his slaves when he died. More to the point, he hated the federal judiciary. See, e.g., here.
Second, give me a break on the politics angle too. No federal law is enacted, particularly given an expansive and legally complex law like AEDPA, without politics. Some of the politics is high-minded. Some is not. Welcome to the real world.
Third, AEDPA did a number of very sensible things. Next, I will detail some of those perfectly rational changes.
It established a statute of limitations. Under the Act, a state prisoner must seek relief in federal court within one year of the conclusion of either the direct appeal of his state judgment or the expiration of time for seeking such appeal. 28 U.S.C. § 2244(d)(1)(A). If the prisoner promptly seeks collateral review of his judgment in state court before coming to federal court, the limitations period will be tolled until that collateral review in the state courts has been concluded.
Prior to the Act, federal courts were authorized by Rule 9 of the Rules Governing Section 2254 cases to dismiss a habeas petition that was filed long after the conviction and sentence, but only if the court concluded that 1) the petitioner previously knew or should have known of the existence of the grounds raised in the petition, and 2) the delay resulted in the state being prejudiced in its ability to respond to the petition.
Also, the Act authorizes federal judges to deny on the merits any unexhausted claim. An unexhausted claim is a claim that the petitioner failed to present to the state courts for decision before including it in a federal petition. 28 U.S.C. § 2254(b)(2). Prior law required federal courts to dismiss an unexhausted claim without prejudice. The petitioner then could litigate that claim in state court, and subsequently file anew in federal court.
Additionally, the Act prohibits a federal judge from holding an evidentiary hearing in a habeas case when the petitioner has failed to develop the facts in state court unless the facts supporting the claim would establish the petitioner’s innocence of the underlying offense, and the claim relies on either 1) a new rule of criminal procedure that the Supreme Court has decided must apply retroactively, or 2) factual information that the petitioner could not have discovered earlier. 28 U.S.C. § 2254(e)(2). Restrictions on evidentiary hearings before AEDPA were not nearly as exacting.
Furthermore, AEDPA restricted the circumstances under which a federal court is permitted to entertain a successive petition. It requires prior authorization from the court of appeals, and bars entirely federal court review of any claim that a petitioner had included in a prior petition. 28 U.S.C. § 2244(b)(3)(A).
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.” 28 U.S.C. § 2254(d). And, the “applicant shall have the burden of rebutting the presumption of [factual] correctness by clear and convincing evidence.” 28 U.S.C. § 2254(e)(1).
Habeas corpus cases attacking the decisions of state courts swallow up a large amount of federal judicial time and resources. Each year, more than 18,000 cases, or one out of every 14 civil cases filed in the federal district courts, are filed by state prisoners seeking habeas corpus relief, and more than 6,000 of these cases reach the courts of appeals. See, e.g. Nancy J. King, J.D.; Fred L. Cheesman II, Ph.D.; Brian J. Ostrom, Ph.D., Final Technical Report: Habeas Litigation in U.S. District Courts: An Empirical Study of Habeas Corpus Cases Filed by State Prisoners Under the Antiterrorism and Effective Death Penalty Act of 1996, at p. 10, National Center for State Courts pursuant to a grant awarded by the National Institute of Justice, Office of Justice Programs, United States Department of Justice (August 2007).
With that in mind, and reminding Josh and others that ours is a Republic,* I will give you a few of my personal observations of the merits of AEDPA.
- 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. . . .”).
- Without a hard and fast statute of limitations there was no incentive for state prisoners to seek federal review in a timely fashion. Not infrequently, long after a conviction had been obtained and a sentence imposed, a state prisoner would waltz into federal court in the hopes of winning the lottery. Prior to AEDPA, it is not an exaggeration to suggest that state convictions were never final.
- Without AEDPA, state prisoners could and did file multiple petitions making serial claims that could just as well have been made in the first petition. Serial bites of the apple were not uncommon.
- Prior to AEDPA, too often single federal district judges would hold evidentiary hearings with the result that prior determinations of the facts by the state courts were ignored, even though those state-made determinations were eminently reasonable.
- Through the statutory requirement of a strict exhaustion requirement, AEDPA effectively barred the not infrequent prisoner litigation tactic of raising one set of claims in the state courts while raising entirely different claims in the federal courts. Previously, the prisoner would be told to exhaust his claims and come back again, thus wasting the time and energies of the state and federal courts.
I could go on, but you get the idea.
In summary, reasonable people can debate the strengths and weaknesses of various provisions of AEDPA. However, it is grossly inaccurate to suggest that AEDPA is creature birthed by craven politicians who were supported by a fear-driven and bad-shit crazy citizenry. Plainly, AEDPA was motivated largely by abusive prisoner litigation. Borrowing Josh’s phraseology, preventing “rape” is not the same as “castration.”
Richard G. Kopf
Senior United States District Judge (NE)