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.