In the 2022 Supreme Court case Shinn v. Ramirez, the attorney representing the state of Arizona made a jarring argument. One of the two prisoners behind the case was an Arizona death row inmate named Barry Jones. A judge from the U.S. Court of Appeals for the Ninth Circuit had previously ruled that both Jones’s trial and appellate attorneys had failed to uncover the evidence that he was likely innocent. The exonerating evidence then came out at a hearing that was held decades after his conviction.
The attorney for Arizona told the court that because the evidence of Jones’s innocence hadn’t been discovered until after he had exhausted his appeals in Arizona, the federal courts could not consider that evidence, no matter what it revealed. “Innocence,” he infamously told the court, “isn’t enough.”
Incredibly, the Supreme Court agreed. The majority opinion didn’t rule that the Ninth Circuit judge was wrong about the facts. It ruled that he shouldn’t have been looking at them.
This dystopian state of affairs is largely due to the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). It’s one of the worst and most consequential criminal justice laws of the past half-century, yet few people outside of criminal law have heard of it, and even fewer really understand how it works.
That was all by design. Congress passed AEDPA in the shadow of the Oklahoma City bombing; Bill Clinton signed it on the week of the bombing’s first anniversary. Clinton was in the middle of a reelection campaign, and was trying to move to the center after getting walloped in the 1994 midterms. AEDPA is a sprawling law—its tentacles extend into immigration, antiterrorism policy, and day-to-day criminal justice. But the two most onerous provisions are its restriction on federal habeas corpus petitions—and on a prisoner’s ability to ask the federal courts to review state convictions.
Republicans had long complained that death row prisoners were clogging the federal courts with trivial appeals that were delaying executions by decades. That was only partially true. The main reason executions were getting delayed was that federal courts had consistently found that, in their haste to put prisoners to death, many states weren’t providing the accused with an adequate defense or were abrogating constitutional rights in other ways.
The country’s anger and grief after Oklahoma City gave law-and-order politicians the opening to recklessly pass the restrictions they had always wanted. This never made much sense in the context of the bombing. Nearly all terrorism suspects are prosecuted in federal court. That was also true of Timothy McVeigh, who carried out the Oklahoma City bombing. McVeigh also waived his appeals. Moreover, and despite the law’s name, the habeas restrictions aren’t limited to terrorism cases, or even death penalty cases—they apply to every felony conviction.
AEDPA codified a new regime of administrative procedures that today decides who can and can’t get into federal court. It set a one-year filing deadline. It sharply limited “successive” petitions—prisoners get just one “bite at the apple” to challenge their state convictions in federal court.
Most importantly, it rewrote the standard of review. Before AEDPA, a federal judge could reverse when a state court was wrong on the law or the facts of a case. After AEDPA, a federal judge can grant relief only if the state court’s decision is “contrary to” or an “unreasonable application of” clearly established Supreme Court precedent—or if the ruling rests on an unreasonable reading of the facts.
In other words, even when state courts clearly get a case wrong, the federal courts can’t necessarily intervene. They can only intervene when the state court is so wrong that no reasonable judge could have reached the same conclusion.
There’s a reason why the Founders required life terms for federal judges. They wanted to insulate the important task of interpreting and enforcing the Constitution from political pressure. Basic rights are too important to be subjected to the whims of electoral politics.
AEDPA effectively outsourced constitutional rights in criminal cases from the federal courts to the states. In doing so, the law also flouts the Founders’ desire to protect constitutional rights from being voted away by electoral majorities. Currently, thirty-eight states elect their state supreme court justices. Studies have consistently shown that electoral politics makes state supreme courts far less willing to overturn criminal convictions.
Even if AEDPA supporters had been right about frivolous appeals tying up the federal courts, it wouldn’t have justified the habeas restrictions. Constitutionally protected rights aren’t contingent on whether it’s convenient for the government to respect them.
But the law really hasn’t freed up the federal courts. That’s because even as AEDPA made it easier for state courts to violate the Constitution, the Supreme Court has effectively conscripted the federal courts to justify those violations.
In the 2011 decision Harrington v. Richter, the Supreme Court ruled that even when a state court rejects a prisoner’s claim in an unexplained one-line order, a federal judge must imagine any argument that could have supported that ruling. If the federal judge can conceive of any reasonable justification, he must defer to the state court. This has provided state courts with an incentive to issue unexplained or poorly explained rulings and let the federal courts sort them out.
The irony is that AEDPA was passed just as advances in DNA testing began to show that the criminal justice system convicted innocent people far more often than most of us would find acceptable. Just as science started to reveal how alarmingly often the system made mistakes, Congress made it harder for the victims of those mistakes to find relief.
AEDPA’s punishing restrictions effectively hold prisoners accountable for their attorneys’ shortcomings. And the law has become so complicated and convoluted that even seasoned lawyers can make critical mistakes. This was always the point. There’s no real way for a law to weed out frivolous habeas corpus petitions because courts would still need to read the petitions to determine which are and aren’t frivolous. What AEDPA does is force federal courts to dismiss cases without considering the merits because of procedural snafus like missing a filing deadline, failing to properly follow a state’s complicated appeals process, or even exceeding a page limit in a court filing.
Imagine a publishing company that’s getting far too many book manuscripts for its editors to read. So in order to ease the workload, the company institutes a policy that will summarily reject any manuscript submitted in the Helvetica font. Or any manuscript submitted by someone whose last name begins with a letter in the second half of the alphabet. The company would certainly reduce the number of manuscripts its editors read, but not in a way that ensures they’re reading the most worthy submissions. The main problem with this metaphor of course is that we aren’t talking about unpublished books but unprotected constitutional rights, and the consequences aren’t deserving authors who don’t get contracts, but innocent people sent to prison—or even put to death.
Since 1973, over 200 people have been exonerated and freed from death row, according to the Death Penalty Information Center. Many of those cases were discovered by lawyers, journalists, and students who dug up evidence the original defense never found. AEDPA makes that kind of digging harder to get in front of a federal judge.
This year marks the thirtieth anniversary of AEDPA. That’s as good a time as any to reconsider the law’s legacy and think about ways to reform it. Congress could fix all of these problems tomorrow if it had the will. The problem is that there’s little constituency for change. The people most harmed by the law are prisoners, a group with no political power and few sympathizers.
In the first months of the COVID pandemic, Donald Trump infamously declared that “If we stop testing right now, we’d have very few cases, if any.”
That of course was preposterous. Not only would the virus continue running through the population regardless of whether or not anyone was testing for it, not testing would make things worse, because we’d be willfully blinding ourselves to information that could help to slow the spread.
Similarly, prohibiting the federal courts from reviewing state convictions hasn’t stopped wrongful convictions or the constitutional violations that enable them. It has blinded us to them. AEDPA has only made wrongful convictions more likely.
Image via Wikimedia Commons.
