Judges, Commentators Critical of Habeas Law That ​“Keeps People on Death Row Despite Flawed Trials”

A recent arti­cle in the The New York Times Magazine exam­ines the effects of the 1996 Antiterrorism and Effective Death Penalty Act (AEDPA), which was intend­ed to stream­line and short­en cap­i­tal appeals. Its title sum­ma­rizes the statute as ​“The Law That Keeps People on Death Row Despite Flawed Trials.” 

Emily Bazelon opens the arti­cle with the sto­ry of death-row prison Hector Ayala, who was tried before a jury from which pros­e­cu­tors exclud­ed all 7 black or Latino jurors. The fed­er­al appeals court over­turned Ayala’s death sen­tence but in turn was reversed in a 5 – 4 opin­ion by the Supreme Court, with Justice Alito say­ing that habeas cor­pus judges should inter­vene only in ​“extreme” cases. 

AEDPA restricts fed­er­al review of habeas cor­pus appeals, lim­it­ing fed­er­al judges to over­turn­ing state courts only when a state court deci­sion is not just wrong, but ​“was con­trary to, or involved an unrea­son­able appli­ca­tion of, clear­ly estab­lished fed­er­al law” or ​“was based on an unrea­son­able deter­mi­na­tion of the facts in light of the evi­dence pre­sent­ed in the state court pro­ceed­ing.” The High Court’s inter­pre­ta­tion of this lan­guage, say Judges Alex Kozinski and Stephen Reinhardt of the U.S. Court of Appeals for the Ninth Circuit in sep­a­rate arti­cles crit­i­ciz­ing the unjust impact of the statute, has often left fed­er­al judges pow­er­less to cor­rect con­sti­tu­tion­al vio­la­tions, even when the defen­dant appears to be innocent. 

Bazelon high­lights the con­se­quences of this judi­cial absten­tion­ism on inno­cence cas­es, such as when Troy Davis was denied a new tri­al by the fed­er­al courts and was exe­cut­ed despite pre­sent­ing evi­dence that ​“7 of the 9 eye­wit­ness­es who tes­ti­fied against [him] at tri­al had recant­ed, and new wit­ness­es impli­cat­ed some­one else.” The Davis case pro­duced a now-famous state­ment by Justice Scalia that habeas cor­pus is not avail­able to pre­vent the exe­cu­tion of an inno­cent per­son if he was fairly convicted. 

A 2007 study showed that rather than has­ten­ing appeals, the aver­age time courts spend on habeas cas­es has actu­al­ly increased since the law went into effect. Instead, the law has become, in the words of Cornell law pro­fes­sor John Blume, a vehi­cle for ​“agen­da-dri­ven judicial policy-making.”