HOW BILL CLINTON RUINED HABEAS CORPUS

HOW BILL CLINTON MANAGED TO RUIN HABEAS CORPUS

On April 24, 2016, the Antiterrorism and Effective Death Penalty Act (AEDPA) became 20 years old, and Hillary Clinton was running for President. During her campaign, criminal justice reform was a topic for debate, and she seemed dead serious about it. But I didn’t think she really was. Hillary is a smart lawyer. She was with her husband when AEDPA was signed on the White House lawn in 1996. She knew what AEDPA meant when it was signed, and so did her husband.

AEDPA was purportedly enacted in 1996 as a tough, quick response to the Oklahoma City Bombing, and strong response to terrorism on our home soil. The emphasis President Clinton stressed about AEDPA was that would eliminate long, drawn out death penalty appeals, so that people like Timothy McVeigh, perfect candidates for the death penalty, would receive swift justice. Or so it seemed.

AEDPA has been law for a long time now. It has absent from recent debates over criminal justice reform–seen as necessary by Democrats and Republicans alike–despite that its impact in shutting the down the rights of prisoners to challenge the constitutionality of their detention—and to establish their innocence—remains overwhelming. It has cut off the possibility for relief for most state prisoners who need an avenue to prove they were wrongfully convicted. While most Americans may be unaware of the enormous wrong AEDPA has inflicted on prisoners whose federal constitutional rights have been violated, or on those whose convictions are a miscarriage of justice because they are innocent, some federal judges and other scholars recognize the serious damage it has done to these Americans, and have begun to call for its repeal.

I believe the majority of Americans do not know about AEDPA; that it is a horrific law that removed federal review of constitutional violations that still occur regularly in state and federal prosecutions and in other venues. According to author Liliana Segura, “AEDPA’s dizzying provisions — from harsh immigration policies to toughened federal sentencing — were certainly a hasty response to terrorism [that was ostensibly the concern of AEDPA]. But the law was also the product of an administration that long before the Oklahoma City attack had abandoned its party’s core principles on criminal justice, deciding instead to wield crime policy as a political weapon.”[1]

 

The Clinton administration, in ratifying the provisions in the AEDPA that strangled the right of habeas review, knew what it was doing. And it planned to do this before Timothy McVeigh left his bomb in Oklahoma City. Indeed, Clinton had been fairly preoccupied with showing he was tougher on crime than the Republicans were, and that meant he had to go pretty far out there. His 1994 crime bill had done much to show he was not soft on crime. But when the GOP gained control of Congress in the 1994 midterm elections and threw some more bait, Clinton took it, and started to go even further. He was urged on by some advisors who were far too young to conceive of the true ramifications of the habeas strangulation they advocated.

 

Liliana Segura tells the story of the petty political gamesmanship that preceded AEDPA. In the mid-1990’s, Clinton saw it as a good political move to grow tougher on crime, as Segura discovered through confidential White House memos that were only released in 2014. Some of Clinton’s criminal justice strategies prior to Oklahoma City were proposed by very young advisors during Clinton’s face-off with Republicans in advance of the 1996 elections. Because the Republicans gained control of Congress in the 1994 midterm elections, they were preparing a new crime bill of their own, and attacking Clinton’s 1994 crime bill as a fake, among other things, in an effort to steal his thunder.

 

One 1994 memo, written by Department of Justice lawyer Ron Klain, indicates that the new GOP bill was going to take apart Clinton’s crime bill’s major features. Klain wrote that the Republicans’ goal was purely political, and that it was an effort to take away the best Clinton achievement on crime. Klain worried about the Republican’s hopes to ruin the crime bill’s prevention programs, and their effort to deprive Clinton of the opportunity to award communities all over the nation their shares of the 100,000 new police officers in his 1994 bill, which had been Klain’s idea. Klain, a young lawyer who worked for Janet Reno, had been working to pass the 1994 crime legislation since he was in his 20s. The youngest chief counsel to the Senate Judiciary Committee,  Klain was credited as the man who successfully steered passage of Clinton’s 1994 crime bill—the bill that had broadened “three strikes,” added money to prison building, and greatly expanded the death penalty. One wonders what Clinton had to fear from the GOP’s effort after such a crime bill passed.

 

But in his memo pondering ways responses to the Republicans’ new crime bill, Klain advised that the White House should welcome Republican efforts to build on 1994’s crime bill by folding the GOP’s provisions into new democratic legislation that advanced the administration’s top priorities. If the GOP bill passed, it should be a “win” for the White House, Klain believed. Klain attached to his memo an outline of a possible new democratic crime bill, attaching to his memo a chart comparing his new bill to the 1994 crime bill and the new GOP bill. Klain proposed including a $1 billion dollar cut in prevention programs, reallocating $700 million to new juvenile prisons, putting more cops in schools, and creating tougher truth in sentencing laws. In some areas, Klain’s outline was harsher than the GOP legislation. It broadened the range of offenses for which juveniles could be tried as adults, and enhanced penalties for lesser drug crimes.

But most importantly, Klain’s proposal revived an idea already favored by Clinton and his foes in Congress: Habeas corpus reform, a plan that had been cut from the 1994 crime bill. Klain’s proposed reforms would limit death row inmates to a single habeas petition to be filed within strict time limits, while providing the inmate with competent counsel to assist in preparing this single filing.

In any case, Klain’s outlined bill never came to pass; he left the DOJ the following year. Still, his tough on crime ethos stuck like glue, that is, in the realm of Habeas reform.

On April 19, 1995, Timothy McVeigh blew up the Alfred P. Murrah Federal Building in Oklahoma City. Clinton no longer needed PR events to advance his strategies about countering the GOP on crime bills. The President took on the mantle of keeping Americans safe from terrorists and criminals. And Congress vowed to pass a counterterrorism bill by Memorial Day, dropping its work on the GOP crime bill.

But Habeas reform was an idea that Clinton would not abandon now. Clinton went on 60 Minutes on the Sunday after the Oklahoma City Bombing. He told Ed Bradley that his 1994 crime bill expanded the death penalty for purposes just like Oklahoma City, and he hoped the perpetrator would be executed. He also called for speeding up death penalty appeals, adding that Congress had the opportunity “this year” to reform Habeas Corpus proceedings, and he hoped that it would do so. The Habeas reform ball was rolling now on a national level.

While the relationship between shortening appeals for state prisoners and speeding up death penalty appeals in federal terrorism cases remained dubious, state prosecutors openly applauded Clinton’s remark.

Almost a year later at the signing ceremony held April 24, 1996 on the White House’s South Lawn, Clinton addressed the families of those who had died at Oklahoma City, saying:

“We send a loud, clear message today all over the world, in your names.  America will never surrender to terror.”

Then he signed AEDPA.

Segura says that today, AEDPA has “long been eclipsed as a counterterrorism measure by the USA Patriot Act, which was built on its foundations.  *  * *  But for people in [state] prison, its legacy has been sweeping and harsh. For all the rhetoric that accompanied the signing of AEDPA, it has been most severely felt by state prisoners with no connection to terrorism – and especially those who insist they are innocent.”

But Clinton was warned about the dangers AEDPA posed for state prisoners before he signed it. It was Clinton’s call to speed up the death penalty days after the Oklahoma City bombing that began the climb toward enactment of the draconian changes for state prisoners that ended up in AEDPA. A measure brought forward by Senate Judiciary Chair Orrin Hatch as part of the new anti-terrorism bill introduced by Bob Dole was a significant incursion into traditional habeas law affecting state prisoners. In particular, it had provisions that required federal courts to give higher deference to state courts and made it harder for federal courts to grant evidentiary hearings. As a practical matter, these two provisions combined would eliminate federal habeas hearings, one White House lawyer warned. That same lawyer was alarmed because these provisions meant that the president would have to accept highly objectionable Habeas provisions just because they were tied to the new counterterrorism bill.

Clinton’s call as early as his appearance on 60 Minutes just after the attack may have forced his hand. At first, he stood his ground against the Hatch proposal, arguing against passing the Hatch version of Habeas reform because of the need to protect the historic right to meaningful federal review. But, according to Segura, less than two weeks later, Clinton went on Larry King Live, and reversed course. He said Habeas reform ought to be done in the context of the upcoming terrorism legislation so that it would apply to the prosecutions against anyone indicted in Oklahoma.  The Hatch proposal carried the day.

Some say that Clinton’s abrupt reversal was brought about by some visitors he had received in early June of 1995. He met with a group from Oklahoma City that included survivors of the bombing, and grieving family members, who called themselves the “habeas group.” They were lobbying for streamlined death row appeals. At the time, some in the White House were still lobbying Clinton to support a more cautious version of Habeas reform advanced by the NAACP Legal Defense Fund. But after “the habeas group” visited, Clinton rejected the cautious version, saying, “No. Oklahoma.” Perhaps that was the end of Clinton’s objections to arguments against a more cautious approach to Habeas reform.

It is hard to say what pushed Clinton to give up his objections to protection of meaningful federal review for state prisoners. However, the final question for Clinton ultimately became not whether he was going to shut down state habeas review, but how he was going to explain away the Legislation he was signing. In his pre-signing speech, when he spoke about AEDPA’s Habeas review provisions, it is more than obvious he knew the law seriously curtailed federal review of state claims. Otherwise, he would not have discussed it. He talked about the criticisms of its provisions cutting down federal review, and waxed poetic about his “hopes” and “expectations” about what federal courts would do with the new law. He spoke as if his good intentions would be a salve for the hatchet that was about to fall:

“Section 104(3) provides that a Federal district court may not issue a writ of habeas corpus with respect to any claim adjudicated on the merits in State court unless the decision reached was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court. Some have suggested that this provision will limit the authority of the Federal courts to bring their own independent judgment to bear on questions of law and mixed questions of law and fact that come before them on habeas corpus.

“In the great 1803 case of Marbury v. Madison, Chief Justice John Marshall explained for the Supreme Court that “[i]t is emphatically the province and duty of the judicial department to say what the law is.” Section 104(3) would be subject to serious constitutional challenge if it were read to preclude the Federal courts from making an independent determination about “what the law is” in cases within their jurisdiction. I expect that the courts, following their usual practice of construing ambiguous statutes to avoid constitutional problems, will read section 104 to permit independent Federal court review of constitutional claims based on the Supreme Court’s interpretation of the Constitution and Federal laws.

“Section 104(4) limits evidentiary hearings in Federal habeas corpus cases when “the applicant has failed to develop the factual basis of a claim in State court proceedings.” If this provision were read to deny litigants a meaningful opportunity to prove the facts necessary to vindicate Federal rights, it would raise serious constitutional questions. I do not read it that way. The provision applies to situations in which “the applicant has failed to develop the factual basis” of his or her claim. Therefore, section 104(4) is not triggered when some factor that is not fairly attributable to the applicant prevented evidence from being developed in State court.

Preserving the Federal courts’ authority to hear evidence and decide questions of law has implications that go far beyond the issue of prisoners’ rights. Our constitutional ideal of a limited government that must respect individual freedom has been a practical reality because independent Federal courts have the power “to say what the law is” and to apply the law to the cases before them. I have signed this bill on the understanding that the courts can and will interpret these provisions of section 104 in accordance with this ideal.”

This is nice, even saccharine, language for in a President’s speech. In truth it was intended to mollify those who were rightfully worried about how the new law would curtail the right to federal review of constitutional claims. But the truth is, the President is not the Judiciary. In signing AEDPA, Clinton had no real “understanding” about how the Federal courts would interpret the provisions of section 104. He could not promise or guarantee that Federal courts would interpret the sections of 104 in accordance with the “ideal” that they have the power to “say what the law is”. Clinton was engaging in wishful thinking.

As we have seen over the years, AEDPA has repeatedly been interpreted, as Judge Stephen Reinhardt points out, “in the most inflexible and unyielding manner possible.” What Clinton spoke about at the White House signing was his emotional longing that everything would stay the same even though he had signed a law he surely feared would close off federal review for state prisoners. His speech leaves no question that he was aware of the problems AEDPA posed for state prisoners needing review of their constitutional claims. He made a speech full of hopes, then looked away.

In the end, AEDPA had little to do with Timothy McVeigh. McVeigh, who wanted to play the martyr, did not have a long, drawn out death penalty appeal. He was executed in 2001-just six years after the bombing. Just a few months after his execution, Osama bin Laden terrorized New York City, an event that was undeterred by anything in AEDPA, despite Clinton’s ringing claim that in signing it, Americans were sending a loud, clear message all over the world that they would never surrender to terror.

Today, federal court dockets remain backlogged and death row prisoners spend longer than ever awaiting execution.

Why does this all this matter now? A lot of Americans think the US Constitution tells them what rights they have, and that those are the rights they are lawfully entitled to. Those rights “belong” to them as Americans, they think. It is a nice thought. But, it has become untrue. For every right you have, someone has a responsibility to make sure you get it. Many of the rights in the Bill of Rights address what can and cannot happen if we are charged with a crime. And state police, prosecutors, attorneys, and courts routinely ignore or deliberately deprive us of our rights. Should you happen to get yourself wrongly convicted of a crime that you did not commit—and it happens far more often than you think, go ahead and try to get your federal constitutional rights to have real meaning, to give you some shelter from the nightmare. Good luck. Because it is all going to be on you. If you, (or your lawyer) make one small slip, or you miss one small provision in the enormous chess game that is the road leading to federal habeas review—where purportedly you can be saved because your Federal constitutional rights will be vindicated, you will very likely lose the game. The rights you think belong to you as an American will not be there for you for the most part. It may not matter if you are innocent.

Justices like Scalia have written about innocent state habeas petitioners as if they are nothing but idiots who just cannot get it right, and who have no right to anything now that Congress has spoken. If those innocent petitioners file their petitions late, too bad for them. Never mind that they are innocent. They can stay in prison. He has written using the most dehumanizing tone I have read, as if the innocent person filing the petition is just a fool who cannot get anything right, and should not be heard. In my practice, I have seen so many habeas petitioners with perfectly good claims lose before the court even heard their claims. AEDPA has become just one more door that swings shut and locks before human beings living in the criminal justice system can even be heard, leading to their further systematic dehumanization. How much more can we degrade people in a system that is already so dehumanizing, it is beyond our comprehension? When the courts, applying law, routinely participate in the degradation, something is fundamentally wrong in our jurisprudence, and in the way the law treats its subjects. We have made it impossible for their constitutional rights to provide them protection. I get the sense—this is just a feeling I have—it is because on some level most judges fundamentally despise them.

I will write more about that next time.

So, for whom does AEDPA have lasting meaning? Not for terrorists. Not for their victims.  AEDPA has only had enormous meaning for the legions of those not on death row, for those lingering in state prisons on dubious grounds, those who sought review and were denied it, who face the prospect of dying there, who were ignored by federal courts that refused to review their convictions on messy, difficult to comprehend, or trivial procedural grounds. For wrongfully convicted state prisoners and their families, AEDPA has had huge, lasting, and devastating impact. The injustice they suffer by operation of AEDPA’s strictures is worse than some mere unintended collateral consequence of a poorly thought-out law. It is as if the US Constitution itself has turned its back on them.

For those Americans, languishing in prisons—hopelessly stuck—AEDPA’s reform is long overdue.

Did Clinton know this? I think he did on some level. And I am sure he does now. But he and Hillary say nothing about this tragedy. One would think they would speak of it. But even today, in 2017, neither of them say a word.

 

[1] Segura, L. 2016. “Gutting Habeas Corpus: The Inside Story of How Bill Clinton Sacrificed Prisoners’ Rights for Political Gain.” The Intercept. Available at: https://the intercept.com/2016/05/040the-untold-story-of-bill-clintons-other-crime-bill/?comments=#comments

AEDPA MUST BE REPEALED IF CRIMINAL JUSTICE REFORM IS TO HAVE ANY MEANING

 

Sometimes I feel befuddled like Lieutenant Colombo when he asks, “There’s one more thing that troubles me …” Because when I see today’s national debate about criminal justice reform, and all the discussion surrounding reform and about mass incarceration, I want to ask, “And, there’s one more thing that troubles me …. isn’t anyone going to talk seriously about repeal of the Antiterrorist and Effective Death Penalty Act of 1996, Pub. L. No. 104-132 110 Stat. 1214 (codified as amended in scattered sections of the US. Code) (AEDPA) as a critical part of this reform package?” But I do not see any debate or discussion about AEDPA repeal in the talk about criminal justice reform and/or and the end to mass incarceration. I see talk about re-entry reform, end to mandatory minimums, prison reform, and the like, but not AEDPA repeal. This just makes no sense to me. No sense at all.

 

Never mind that a discussion or effort to repeal AEDPA would get no support in today’s Congress. I do not care. Because regardless of the times, you have to begin with an idea. You must begin with an idea. And the idea has to spread. Accepting the status quo is no answer. If it was an answer, nothing good would ever get done.

 

I started my career as a clerk for appellate judges at the State Court of Appeals. Then I became an Assistant Prosecutor, where I learned to try cases, to abide by the Constitution, and that my job was to provide both the government and criminal defendants with a fair trial. I also, after I left the prosecutor’s office, learned how to spot it quickly when assistant prosecutors from other counties flagrantly violated their constitutional obligations. Over the years, I became a criminal defense attorney, eventually representing indigent defendants, which I did for about 10 years. In the latter years of my practice, I concentrated on post-conviction and habeas corpus work for indigent state prisoners. Because of that experience, I know the reality criminal defendants live, from arrest to pre-trial motions, to trial, to post-trial motions, to motions for remand, to appeal of right, to post-conviction review, to post-conviction discretionary appeal, to petitions for habeas review in federal district court and accompanying motions, to motions for certificate of appealability, to federal circuit court Briefs on Appeal, to Petitions for Writ of Certiorari. I’ve been with them the whole way.

 

And I’ve represented hundreds of indigent offenders charged with state capital offenses, by that I mean life max offenses, since I did not work in a death penalty state.

 

My experience has taught me that repeal of AEDPA’s provisions concerning federal review of state convictions is an essential component of criminal justice reform. It is no excuse to fail to include it because the present Legislature would never vote for it, or because I cannot yet prove that AEDPA causes so many miscarriages of justice that if repealed there would be a palpable dent in the number of prisoners contributing to mass incarceration. AEDPA repeal must still be included in criminal justice reform. Even if it takes 20 years to repeal it, it is time for us to have the discussion in earnest, and to tell the myriad stories of the miscarriages of justice that AEDPA has created.

 

As a young lawyer, it was my misguided understanding that the Writ of Habeas corpus existed to enforce the right of personal liberty. When it has been denied and a person has been confined in violation of the Constitutional laws of the United States, a federal Court has the power to release that person. As in Fay v. Noia, 372 U.S. 391 (1963), I understood that state courts were encouraged to review federal constitutional claims, but that federal courts had the last word, and federal courts allowed state petitioners to relitigate federal questions in a federal forum, facts and all. That was a long time ago.  I never thought it had anything to do with the case loads of federal judges, or with judicial resources, or with comity, or procedural hurdles that habeas petitioners must climb or be denied. I thought it was about the sanctity of the Constitution. I was very, very wrong.

 

I started practicing post-conviction and habeas corpus for indigent criminal defendants around 1994, just before AEDPA’s enactment. Back then it was hard enough to guide my clients through the myriad loopholes we had to jump through to escape procedural defaults and failures to exhaust remedies, or to prove that as second-or successive petitioners we still deserved to be heard.

 

But before I’d even gotten my bearings in this new area of practice, Congress passed and Bill Clinton signed AEDPA in 1996 after the Oklahoma City bombing. As a solo practitioner trying to help indigent criminal defendants, I felt like a bomb had dropped on my clients, and a huge fence had been placed around them so they could not get relief. I recall having lunch with another habeas lawyer, a woman I considered a mentor.  I asked her what we were supposed to do for our clients now that AEDPA was a reality, assuming there was some answer, some hole in the law I had to[1] climb through to help my clients. She told me, “There’s nothing we can do anymore. I don’t want to take these cases because I can’t help anybody. I don’t want them thinking I can when now I can’t.” I was shocked. I thought there had to be something we could do.

 

The New Yorker describes what happened upon AEDPA’s passage aptly:

 

“When AEDPA became law, it felt like an ‘atomic bomb’ on the federal judiciary and the ‘structure of habeas corpus law,’ according to ‘Federal Habeas Corpus Practice and Procedure,’ the leading treatise by Randy Hertz and James S. Liebman. Of the seventy or so cases in which the [Supreme Court] Justices have interpreted the statute, there are some in which a defendant seeking a new trial through a writ of habeas corpus has prevailed, but they are in the minority. The Court’s AEDPA jurisprudence is basically made up of decisions in which the Justices have increasingly narrowed the chances of review under the statute.”

 

In fact, the New Yorker reports, a Columbia Law School study of every state and death penalty appeal before AEDPA, from 1973 to 1995, found that courts found reversible error in nearly 7 of every 10 of the thousands of capital sentences that were reviewed. There were so many mistakes that after state courts threw out 47% of death sentences because of serious flaws, a later federal review found serious error, or error undermining the reliability of the outcome, in 40% of the remaining sentences. Without federal habeas corpus, those errors would have gone unchecked.

 

But AEDPA turned review of state decisions about federal constitutional matters into a procedural nightmare that ultimately ends with federal court deference to anything a state court does. The rules it imposed range from harshly construed time limits within which a prisoner must file his post-conviction petition for habeas relief in both state and federal courts, to exhaustion and procedural default doctrines that punish prisoners who fail to succeed in timely developing all the necessary information needed, or in following all of the complex rules, to a bar on nearly all second or successive habeas petitions, to an equitable tolling doctrine limited to extraordinary  circumstances that courts are too rarely willing to find. The maze of procedure is difficult for most competent lawyers to navigate–let alone a prisoner–often with little or no schooling, who must research habeas law in an underfunded prison law library, if he has access to it. From a practical standpoint, about which I will write later, a prisoner must help himself, or obtain whatever assistance he can from other prisoners who know the law, or try to file on his own using court forms, or  forfeit his constitutional rights, assuming he has been advised he has them and the time is running. But those matters will be the subject of a later article.

 

The heart of the AEDPA begins by telling the petitioner that he will not be granted habeas relief in federal court, even when the state court that ruled on his federal constitutional issues has misapplied the law. Then it goes on to tell him that  maybe he will get habeas relief if he can prove certain things. He might be granted habeas relief if he can prove that the state court’s decision was “contrary to” what the Supreme Court has determined to be “clearly established federal law,” or if he can show that the state court’s decision was “an unreasonable application of” it. Also, he has one year to file his petition for habeas corpus relief from the date on which the state court’s judgment becomes final. There are exceptions to this. I won’t discuss them here, but will leave them until later. They are baffling to attorneys, much less to petitioners who are forced to file on their own.  A petitioner might get more time, for example, if if he has “newly discovered evidence.” However, the definition of what is newly discovered evidence to the federal court, and what it actually is to a petitioner, may well be two different things. What is more, the petitioner may get himself out of the one-year filing requirement if he shows a miscarriage of justice occurred in his case, and presents enough evidence to show he is  “actually innocent” such that it is more likely than not that no reasonable juror would have convicted him in light of the new evidence  presented. What that will really mean to the Court is anyone’s guess in light of how conservative the Court has become. The Court will count the petitioner’s delay in presenting the new evidence of actual innocence as a factor in determining whether he has shown actual innocence. McGuiggan v. Perkins, ____US____, ___S Ct.___ (S. Ct. No. 12-126 2013) (5-4). There are other exceptions, but they will be saved for further discussion.

 

In a later post, I want to emphasize and quote from the vitriolic dissent that Justice Scalia wrote in McGuiggan v. Perkins. As I read it, I found it shocking. I want to talk about it in later posts because it illustrates what appointment of another justice of Scalia’s ilk might mean for state petitioners who dare to file outside the one-year statute of limitations and fail to be sufficiently “diligent” in gathering evidence of their actual innocence, whatever “diligent” happens to mean to an evenly divided Court.

 

Having practiced law with hundreds of actual petitioners by my side, I can say honestly that Justices like Scalia have no concept of just what diligence it takes, and how many long years can pass  before evidence an innocent Petitioner suspects may exist about his innocence, but he is not sure, will either materialize or fail to materialize. This makes the diligence inquiry look different from the viewpoint of an innocent petitioner who is incarcerated, indigent, and without assistance. One of the terrible paradoxes of being innocent, of course, is that you may well have been framed by the police. This happens much more frequently in my experience than perhaps the ordinary person can conceive. And much more frequently than Justice Scalia can imagine. If it happens to you, you may be in the dark as to how you ever came to be convicted in the first place. Next thing you know, your trial is over and you are incarcerated. Locked away, without DNA evidence (as most Petitioners do not have), how are you supposed to  know where to turn to begin to find actual evidence that will satisfy a court that you are innocent? Sometimes prisoners have a vague idea from the events at their trials. Even if they do, how do they reach out and connect with potential witnesses who testified against them? Still, I have met prisoners who were framed by police so completely that they had no clue who committed the crimes for which they were convicted. They lacked any knowledge of why witnesses they did not know testified that they were guilty. They were shocked that they were convicted, and upset they followed trial counsel’s pat advice not to take the stand and protest their innocence. If they are poor, and they do not get some serious, professional outside help in tracking down the police misconduct, prosecutorial misconduct, the illegal procedures, the hidden evidence, the mistaken identification, or whatever else took place that pulled them into the system and got them convicted, a long, long time will pass before they can put together any evidence about their innocence—if ever. Still, in these tragic situations, even if they do start to quickly come up with some evidence of innocence, they have no way to evaluate whether it is valid–because they do not know what really happened. They just do not know. Anyone can sell them an affidavit in prison. And not only do courts discount what they manage to come up with because of the time that has passed, or because courts do not believe the evidence is plausible, the courts want these convicted defendants to explain their lack of diligence—where have they been with this evidence that they are now saying shows they are innocent? Why have they failed to present it earlier?

What is more, courts, even those that believe the police commit misconduct, cannot believe that people—and I mean minorities—really get framed by police–framed to the extent that they have no idea how this has happened to them. They just do not believe police are quite that bad.

Then the innocent Petitioner is left as to create a crystal ball. He has to figure out how the crime  occurred, how police violated his constitutional rights and involved him in the prosecution, and so on. Being pushed to come up with evidence diligently in this manner is not only frustrating, it is impossible. For the unwitting innocent person who has been framed, the appellate and post-conviction schemes only add a second layer of abuse. I have seen this happen all too frequently in my practice. These individuals are so browbeaten by unconstitutional systemic wrongdoing; the system has blindfolded them so badly, that they could  never exhaust their issues in state court—because they do not know the issues to exhaust, or the record to create. Nor can they make a factual record in a timely fashion. Thus, they could never make a one-year statute of limitations. There is no telling how long it might take for them to discover what injustices visited them that caused their wrongful convictions. If they are ever lucky enough to find out, it could take 20 or 30 years. I can say for sure, that Justices like Scalia will find it impossible to believe that such a Petitioner was so in the dark about his own predicament that it took him so long to discover the evidence of his innocence. And I can also say for sure that such a scenario can truly happen. Because police misconduct as to minorities remains, in this day and age just as intentional and vicious than Supreme Court Justices can imagine. If they think that the days when a lynch mob or Jim Crow mentality existed have ended, they are mistaken.

 

One such as Justice Scalia could not fathom what happens to my young black clients who are on the streets of Detroit. He would not believe the abuse they endure at the hands of police officers. Since he could not believe that it truly happens, he would blame it on my clients. Just like the state courts do. In my practice, it has been nearly impossible to explain the extent of police abuse upon my clients during in state post-conviction review proceedings to, for example, judges and, particularly, journalists who have shown me a unique brand of racism.

 

According to Scalia, if a state Petitioner files outside the Congressionally mandated one-year deadline, then fails to be diligent in setting forth new evidence of innocence (as if Justice Scalia could conceive of the meaning of diligence for an incarcerated person), then the matter of the petitioner’s actual innocence is just too bad.

 

In any case  AEDPA’s standards gutted the federal writ of habeas corpus, which a federal court could presumably use to order the release of someone wrongly imprisoned. In the 1960’s the Supreme Court expanded the law of habeas corpus to protect defendants against unfair treatment at every stage of the criminal process, from arrest and interrogation through trial and sentencing, particularly in death sentence cases. The expansion was controversial; it was restricted under Chief Justice William H. Rehnquist. But even when it was limited, the protection that the Writ afforded was indispensable.

 

 

 

I have represented hundreds of minority clients at all stages of their cases. I can easily say that every one of them has been treated unfairly by the criminal justice system. I can also say that every one of them has suffered a violation of their federal constitutional rights in being convicted of some crime. While I cannot attest that there was a remedy for every wrong that each client suffered, or that every violation rose to the level of a miscarriage of justice, I can say I have found a hideous wrong, usually of federal constitutional magnitude, in many, many of their convictions. I can also say this: as their lawyer, I diligently raised these federal constitutional violations in state courts at every stage of the proceedings where I was counsel; and that the state courts routinely ignored odhat I raised on behalf of my aggrieved clients. And when I supplied an offer of proof and asked the state appellate courts for an evidentiary hearing on remand during a direct appeal so I could make a record of the facts in support a constitutional violation I had discovered, I was routinely denied. I  ask for a hearing again at the next higher court where we sought review, and I would routinely be denied, for no particular reason. Then on post-conviction review, we would start again, and be denied our chance to make a record of federal constitutional violations.

 

That happened was when I was counsel for criminal defendants. I gave them well-drafted briefs, affidavits, and offers of proof that were duly executed, and all the things that having counsel affords. So, think about when they represented themselves, which was often. Their briefs were not well drafted. Some were hand-written, or crafted on crude typewriters. I know, because I worked as a clerk at the state Court of Appeals. I used to struggle hard to make sense of their briefs and give them a fair review. But these crude filings things signal to the Court that their pleadings are just from some prisoner trying to help himself. And unless there is someone at the courthouse who is sensitive to the needs of the poor unfortunate minority prisoner, their brief is going to be disposed of as quickly as possible with as little consideration as the Court can give. Because racism and disdain for the poor runs through our society like an invisible hand. As I have seen myself, the in forma pauperis, the pro se, or in pro per litigant gets pretty well ignored in the appellate courts, unless he makes a truly valid point about a legal injustice that the Court cannot ignore. Otherwise, their pleadings get ignored, and it makes no difference if they present presented affidavits and evidence pointing to their innocence. They must return to court over and over, year after year.

 

Today, more than a third of the Supreme Court’s AEDPA cases that grant relief come from the Ninth Circuit Court of Appeals. Generally, these Supreme Court decisions are reprimands; sometimes, they seem to be directed at one judge, Stephen Reinhardt, a prominent liberal.

 

After the Supreme Court reversed another one of Judge Reinhardt’s decisions granting a petition for habeas corpus, Davis v. Ayala, Judge Reinhardt picked up his pen and wrote about his disagreement with the Supreme Court in the Michigan Law Review. See Stephen R. Reinhardt, The Demise of Habeas Corpus and the Rise of Qualified Immunity: The Court’s Ever Increasing Limitations on the Development and Enforcement of Constitutional Rights and Some Particularly Unfortunate Consequences, 113 Mich. L. Rev. 1219 (2015)[2].

 

Judge Reinhardt’s article begins with the emphatic statement that that there can be no doubt that over the past 20 years, AEDPA has destroyed the ability of a state prisoner to obtain federal review of his constitutional claims:

 

The collapse of habeas corpus as a remedy for even the most glaring of constitutional violations ranks among the greater wrongs of our legal era. *  *  * [H]abeas corpus has been transformed over the past two decades from a vital guarantor of liberty into an instrument for ratifying the power of state courts to disregard the protections of the Constitution. Along with so many other judicial tools meant to safeguard the powerless, enforce constitutional rights and hold the government accountable, habeas has been slowly eroded by a series of recent Supreme Court rulings that aim ultimately at eliminating that judicial method of protecting individual rights. 113 Mich. L. Rev. at 1220.

 

 

As a judge on the United States Court of Appeals for the Ninth Circuit—a court conservatives love to deride for its attachment to protecting the constitutional rights of persons accused or convicted of crimes (footnote omitted)—I have been an involuntary participant in the shaping of modern habeas law, although not in the form that I believe the Constitution demands. In my experience, the true story *  *  * is a tale defined by a series of highly questionable Supreme Court rulings that took a new statute, AEDPA—misconceived at its inception and born of misguided political ambition—and repeatedly interpreted it in the most inflexible and unyielding manner possible. Exalting notions of comity and finality above all else, and treating the constitutional rights at stake with the same lack of concern manifest elsewhere in their recent jurisprudence (footnote omitted), the conservative justices who form the majority on the current Supreme Court—joined more and more frequently for differing reasons, by their more moderate colleagues—embarked on a path designed to render constitutional rulings by state courts nearly unreviewable by the federal judiciary. Id., 1221.

 

 

Judge Reinhardt trenchantly wrote that AEDPA and the Supreme Court have created “a twisted labyrinth of deliberately crafted legal obstacles that make it as difficult for habeas petitioners to succeed in pursuing the writ as it would be for a Supreme Court justice to strike out Babe Ruth, Joe DiMaggio and Mickey Mantle in succession.” Over the course of the Court’s 2007-13 terms, Judge Reinhardt pointed out, the United States Supreme Court ruled against prisoners in all but 2 of the 28 habeas cases it considered.

 

According to the New York Times[3], today is a time of increasing bipartisan interest in criminal justice reform, and eradication of mass incarceration. The issue includes attention from President Obama and even regret from Bill Clinton.[4] Still, while the Clintons admitted during Hillary’s campaign that the Clinton criminal justice reform initiatives of the 1990s were “wrong”, neither former President Clinton nor Mrs. Clinton, suggested or mentioned AEDPA. Neither acknowledged that AEDPA has caused so many miscarriages of justices and so limited federal habeas review for state petitioners who are deserving of it, that it ought to be repealed. This is a shame. It is more disheartening in light of the petty and ineffectual political gamesmanship that went into AEDPA’s enactment on Clinton’s part, particularly when that is weighed against the huge number of prisoners AEDPA it has damaged (a subject for my next article). One would think the Clintons, said to be so loved by minorities, would favor repeal. But no.

 

Judge Alex Kozinski, another Ninth Circuit judge, powerfully expresses my own feelings about AEDPA in his writings. He says that AEDPA, as interpreted by the Supreme Court’s conservative majority, renders federal judges powerless to grant potentially innocent petitioners a new trial, to grant them release, or to stop their executions. AEDPA, Judge Kozinski says, “is a cruel, unjust and unnecessary law that effectively removes federal judges as safeguards against miscarriages of justice. *  *  *  It has resulted and continues to result in much human suffering. It should be repealed.”[5]         My sentiments exactly.

 

 

 

 

 

 

[1] http://www.newyorker.com/news/news-desk/the-destruction-of-defendants-rights

[2] Available at: http://repository.law.umich.edu/mlr/vol113/iss7/3

 

[3] https://www.nytimes.com/2015/07/17/magazine/the-law-that-keeps-people-on-death-row-despite-flawed-trials.html?_r=0

[4] Id.

[5] Id. The New York Times article mentions that Judge Reinhardt agrees with Kozinski, as does John H. Blume, a Cornell law professor who has tracked the law’s effects since its inception.

AEDPA MUST BE REPEALED IF CRIMINAL JUSTICE REFORM IS TO HAVE ANY MEANING

Sometimes I feel befuddled like Lieutenant Colombo when he asks, “There’s one more thing that troubles me …” Because when I see today’s national debate about criminal justice reform, and all the discussion surrounding reform and about mass incarceration, I want to ask, “And, there’s one more thing that troubles me …. isn’t anyone going to talk seriously about repeal of the Antiterrorist and Effective Death Penalty Act of 1996, Pub. L. No. 104-132 110 Stat. 1214 (codified as amended in scattered sections of the US. Code) (AEDPA) as a critical part of this reform package?” But I do not see any debate or discussion about AEDPA repeal in the talk about criminal justice reform and/or and the end to mass incarceration. I see talk about re-entry reform, end to mandatory minimums, prison reform, and the like, but not AEDPA repeal. This just makes no sense to me. No sense at all.

Never mind that a discussion or effort to repeal AEDPA would get no support in today’s Congress. I do not care. Because regardless of the times, you have to begin with an idea. You must begin with an idea. And the idea has to spread. Accepting the status quo is no answer. If it was an answer, nothing good would ever get done.

I started my career as a clerk for appellate judges at the State Court of Appeals. Then I became an Assistant Prosecutor, where I learned to try cases, to abide by the Constitution, and that my job was to provide both the government and criminal

 

defendants with a fair trial. I also, after I left the prosecutor’s office, how to spot it quickly when assistant prosecutors from other counties flagrantly violated their constitutional obligations. Over the years, I became a criminal defense attorney, eventually representing indigent defendants, which I did for about 10 years. In the latter years of my practice, I concentrated on post-conviction and habeas corpus work for state prisoners. Because of that experience, I know the reality criminal defendants live, from arrest to pre-trial motions, to trial, to post-trial motions, to motions for remand, to appeal of right, to post-conviction review, to post-conviction discretionary appeal, to petition for habeas review in federal district court and accompanying motions, to motions for certificate of appealability, to federal circuit court Briefs on Appeal, to Petition for Writ of Certiorari. I’ve been with them the whole way.

And I’ve represented hundreds of indigent offenders charged with state capital offenses, by that I mean life max offenses, since I did not work in a death penalty state.

My experience teaches me that repeal of AEDPA’s provisions concerning federal review of state convictions is an essential component of criminal justice reform. It is no excuse to fail to include it because the present Legislature would never vote for it, or because I cannot just yet prove that AEDPA causes so many miscarriages of justices that if it was repealed there would be a palpable dent in the number of prisoners contributing to mass incarceration. AEDPA repeal must be included. Even if it takes 20 years to repeal it, it is time for us to have the discussion in earnest, and to tell the myriad stories of the miscarriages of justice that AEDPA has created.

As a young lawyer, it had been my misguided understanding that the Writ of Habeas corpus lies to enforce the right of personal liberty. When it has been denied and a person has been confined in violation of the Constitutional laws of the United States, a federal Court has the power to release that person. As in Fay v. Noia, 372 U.S. 391 (1963), I understood that state courts were encouraged to review federal constitutional claims, but that federal courts had the last word, and federal courts allowed state petitioners to relitigate federal questions in a federal forum, facts and all. That was a long time ago. And I was wrong. I never thought it had anything to do with the case loads of federal judges, or with judicial resources, or with procedural hurdles that habeas petitioners must climb or be denied. I thought it was about the sanctity of the Constitution. I was very, very wrong.

I started practicing post-conviction and habeas corpus for indigent criminal defendants around 1994, just before AEDPA’s enactment. Back then it was hard enough to guide my clients through the myriad loopholes we had to jump through to escape various procedural defaults and failures to exhaust remedies, or to prove that as second-or successive petitioners we still deserved to be heard.

Before I’d even gotten my bearings in this new area of practice, Congress passed and Bill Clinton signed AEDPA in 1996. As a solo practitioner trying to help indigent criminal defendants, I felt like a bomb had dropped on my clients, and a huge fence had been placed around them so they could not get relief. I recall having lunch with another habeas lawyer, a woman I considered a mentor back then. I asked her what we were supposed to do for our clients now, assuming there was some answer, some hole in the law I had to[1] climb through to help my clients. She told me, “There’s nothing we can do anymore. I don’t want to take these cases because I can’t help anybody. I don’t want them thinking I can when now I can’t.” I was shocked. I thought there had to be something we could do.

The New Yorker describes what happened aptly:

When AEDPA became law, it felt like an “atomic bomb” on the federal judiciary and the “structure of habeas corpus law,” according to “Federal Habeas Corpus Practice and Procedure,” the leading treatise by Randy Hertz and James S. Liebman. Of the seventy or so cases in which the [Supreme Court] Justices have interpreted the statute, there are some in which a defendant seeking a new trial through a writ of habeas corpus has prevailed, but they are in the minority. The Court’s AEDPA jurisprudence is basically made up of decisions in which the Justices have increasingly narrowed the chances of review under the statute.

In fact, the New Yorker reports a Columbia Law School study of every state and death penalty appeal before AEDPA, from 1973 to 1995, found that courts found reversible error in nearly 7 of every 10 of the thousands of capital sentences that were reviewed. There were so many mistakes that after state courts threw out 47% of death sentences because of serious flaws, a later federal review found serious error, or error undermining the reliability of the outcome, in 40% of the remaining sentences. Without federal habeas corpus, those errors would have gone unchecked.

But AEDPA turned review of state decisions about federal constitutional matters into a procedural nightmare that ultimately ends with federal court deference to anything a state court does. The rules it imposed range from harshly construed time limits within which a prisoner must file his post-conviction petition for habeas relief in both state and federal courts, to exhaustion and procedural default doctrines that punish prisoners who fail to succeed tin timely developing all the necessary information needed or in following all of the complex rules, to a bar on nearly all second or successive habeas petitions, to an equitable tolling doctrine limited to extraordinary  circumstances that courts are too rarely willing to find. The maze or procedure is difficult for most competent lawyers to navigate let alone a prisoner, often with little or no schooling, who must research habeas law in the confines of an underfunded prison law library, if he has access to it. From a practical standpoint, about which I will write later, a prisoner must help himself, or obtain whatever assistance he can from other prisoners who know the law, or try to file on his own on court forms, or to forfeit his constitutional rights assuming he has been advised he has them and the time is running. But that will be the subject of a later article.

The heart of the AEDPA starts out telling the petitioner that he will not be granted habeas relief in federal court, even when the state court that ruled on his federal constitutional issues misapplied the law. Then it goes on to tell him that he maybe he will get habeas relief if he can prove certain things. He might be granted habeas relief if he can prove that the state court’s decision was “contrary to” what the Supreme Court has determined to be “clearly established federal law,” or if he shows that the state court’s decision was “an unreasonable application of” it. Also, he gets have one year to file his petition for habeas corpus relief from the date on which the state court’s judgment becomes final. There are exceptions to this. I won’t discuss them here, but will leave them until later. They are baffling to attorneys, much less to petitioners who are forced to file on their own.  You might get more time, for example, if you have newly discovered evidence. However, the definition of what is newly discovered evidence to the federal court, and what it actually is to a petitioner, may well be two different things. What is more, you may get yourself out of the one-year filing requirement if you show a miscarriage of justice occurred in your case, and you present enough evidence to show you are actually innocent such that it is more likely than not that no reasonable juror would have convicted you in light of the new evidence you have presented. Now, what that will really mean to the Court is anyone’s guess in light of how conservative the Court has become. The Court will count your delay in presenting your new evidence as a factor in determining whether you have shown actual innocence. McGuiggan v. Perkins, ____US____, ___S Ct.___ (S. Ct. No. 12-126 2013) (5-4).

In later posts, I want to emphasize the vitriolic dissent that Justice Scalia wrote in McGuiggan v. Perkins. As I read it, I found it shocking. I want to talk about it in later posts, to illustrate the point that appointment of another justice of Scalia’s ilk bodes poorly for state petitioners who dare file outside the one-year statute of limitations and fail to be sufficiently “diligent” in gathering evidence of their actual innocence, whatever “diligent” happens to mean to the Court.

Having practiced law with hundreds of actual Petitioners by my side, I can say honestly that the Justices have no concept of just what diligence it takes, and how many long years can pass by before evidence a Petitioner suspects may exist about his innocence, but he is not sure, will either materialize or fail to materialize. One of the paradoxes of being innocent, of course, is that you may have been framed by the police. This happens much more frequently in my experience than perhaps the ordinary person can conceive. If it happens to you, you cannot know exactly how you came to be convicted in the first place. Next thing you know, your trial is over and you are incarcerated. Locked away, without DNA evidence (as most Petitioners do not have), how do you know where to turn to begin to find actual evidence that will satisfy a court that you are innocent? Sometimes prisoners have a vague idea. Even if they do, how do they reach out and connect with potential witnesses who testified against them? But I have often met prisoners who were framed by police so completely that they have no clue who committed the crimes for which they were convicted. They lack any knowledge of why witnesses they do not know said they were guilty. If they are poor, and they do not get some serious, professional outside help in tracking down the police misconduct, prosecutorial misconduct, the illegal procedures, the hidden evidence, the mistaken identification, or whatever else took place that pulled them into the system and got them convicted, a long, long time will pass before they can put together any evidence about their innocence—if ever. Still, in these tragic situations, even if they do start to quickly come up with some evidence of innocence, they have no way to evaluate whether it is valid. They just do not know what really happened. Anyone can sell them an affidavit in prison. And not only do courts discount what they manage to come up with because of the time that has passed, or because courts do not believe the evidence is plausible, the courts want these convicted defendants to explain their lack of diligence—where have they been with this evidence that they are now saying shows they are innocent? Why have they failed to present it earlier? Courts cannot believe that people—and I mean minorities—are so framed by police that they had no idea what happened to them. They just do not believe police are quite that bad. Then the Petitioner is left as if he must have a crystal ball. He has to figure out how the crime occurred, how police violated his constitutional rights and involve him in the prosecution, and so on. Being pushed to come up with evidence diligently in this manner is not only frustrating, it is impossible. For the unwitting innocent person who has been framed, the appellate and post-conviction schemes seem to add a second layer of abuse. I have seen this happen all too frequently in my practice. These individuals are so browbeaten by unconstitutional systemic wrongdoing; the system has blindfolded them so badly, that not only could they never exhaust their issues in state court—since they do not really know the issues that convicted them, they could never make a one-year statute of limitations. There is no telling how long it might take for them to discover what injustices visited them that caused their wrongful convictions.

For this reason, I fail to see how anyone could make sense of this kind of conundrum to one such as Justice Scalia. He would not believe that it even happens. In my own practice, it has been nearly impossible to explain in state post-conviction review to, for example, judges and journalists.

According to Scalia, if a state Petitioner files outside the Congressionally mandated one-year deadline, then fails to be diligent in setting forth new you fail to be diligent about getting your new evidence of evidence, (as if Justice Scalia could conceive of the meaning of diligence for an incarcerated person), your actual innocence is apparently just too bad.

The AEDPA standards gutted the federal writ of habeas corpus, which a federal court could presumably use to order the release of someone wrongly imprisoned. In the 1960’s the Supreme Court expanded the law of habeas corpus to protect defendants against unfair treatment at every stage of the criminal process, from arrest and interrogation through trial and sentencing, particularly in death sentence cases. The expansion was controversial; it was restricted under Chief Justice William H. Rehnquist. But even when it was limited, the protection that the Writ afforded was indispensable.

I have represented hundreds of minority clients at all stages of their cases. I can easily say that every one of them has been treated unfairly by the criminal justice system. I can also say that every one of them has suffered a violation of their federal constitutional rights in being convicted of some crime. While I cannot attest that there was a remedy for every wrong that each client suffered, or that every violation rose to the level of a miscarriage of justice, I can say I have found a hideous wrong, usually of federal constitutional magnitude, in many, many of their convictions. I can also say this: as their lawyer, I diligently raised these federal constitutional violations in state courts at every stage of the proceedings where I was counsel; and that the state courts routinely ignored or did not address the federal constitutional violations that I raised on behalf of my aggrieved clients. And when I supplied an offer of proof and asked the state appellate courts for an evidentiary hearing on remand during a direct appeal so I could make a record of the facts in support a constitutional violation I had discovered, I was routinely denied. I would ask for a hearing again at the next higher court where we sought review, and I would routinely be denied, for no particular reason. Then on post-conviction review, we would start again, and be denied our chance to make a record of federal constitutional violations.

That happened was when I was counsel for criminal defendants. I gave them well-drafted briefs, affidavits, and offers of proof that were duly executed, and all the things that having counsel affords. So, think about when they represented themselves, which was often. Their briefs were not well drafted. Some were hand-written, or crafted on crude typewriters. I know, because I worked as a clerk at the state Court of Appeals. I used to struggle hard to make sense of their briefs and give them a fair review. But these crude filings things signal to the Court that their pleadings are just from some prisoner trying to help himself. And unless there is someone at the courthouse who is sensitive to the needs of the poor unfortunate minority prisoner, their brief is going to be disposed of as quickly as possible with as little consideration as the Court can give. Because racism and disdain for the poor runs through our society like an invisible hand. As I have seen myself, the in forma pauperis, the pro se, or in pro per litigant gets pretty well ignored in the appellate courts, unless he makes a truly valid point about a legal injustice that the Court cannot ignore. Otherwise, their pleadings get ignored, and it makes no difference if they present presented affidavits and evidence pointing to their innocence. They must return to court over and over, year after year.

Today, more than a third of the Supreme Court’s AEDPA cases that grant relief come from the Ninth Circuit Court of Appeals. Generally, these Supreme Court decisions are reprimands; sometimes, they seem to be directed at one judge, Stephen Reinhardt, a prominent liberal.

After the Supreme Court reversed another one of Judge Reinhardt’s decisions granting a petition for habeas corpus, Davis v. Ayala, Judge Reinhardt picked up his pen and wrote about his disagreement with the Supreme Court in the Michigan Law Review. See Stephen R. Reinhardt, The Demise of Habeas Corpus and the Rise of Qualified Immunity: The Court’s Ever Increasing Limitations on the Development and Enforcement of Constitutional Rights and Some Particularly Unfortunate Consequences, 113 Mich. L. Rev. 1219 (2015)[2].

Judge Reinhardt’s article begins with the emphatic statement that that there can be no doubt that over the past 20 years, AEDPA has destroyed the ability of a state prisoner to obtain federal review of his constitutional claims:

The collapse of habeas corpus as a remedy for even the most glaring of constitutional violations ranks among the greater wrongs of our legal era. *  *  * [H]abeas corpus has been transformed over the past two decades from a vital guarantor of liberty into an instrument for ratifying the power of state courts to disregard the protections of the Constitution. Along with so many other judicial tools meant to safeguard the powerless, enforce constitutional rights and hold the government accountable, habeas has been slowly eroded by a series of recent Supreme Court rulings that aim ultimately at eliminating that judicial method of protecting individual rights. 113 Mich. L. Rev. at 1220.

As a judge on the United States Court of Appeals for the Ninth Circuit—a court conservatives love to deride for its attachment to protecting the constitutional rights of persons accused or convicted of crimes (footnote omitted)—I have been an involuntary participant in the shaping of modern habeas law, although not in the form that I believe the Constitution demands. In my experience, the true story *  *  * is a tale defined by a series of highly questionable Supreme Court rulings that took a new statute, AEDPA—misconceived at its inception and born of misguided political ambition—and repeatedly interpreted it in the most inflexible and unyielding manner possible. Exalting notions of comity and finality above all else, and treating the constitutional rights at stake with the same lack of concern manifest elsewhere in their recent jurisprudence (footnote omitted), the conservative justices who form the majority on the current Supreme Court—joined more and more frequently for differing reasons, by their more moderate colleagues—embarked on a path designed to render constitutional rulings by state courts nearly unreviewable by the federal judiciary. Id., 1221.

Judge Reinhardt trenchantly wrote that AEDPA and the Supreme Court have created “a twisted labyrinth of deliberately crafted legal obstacles that make it as difficult for habeas petitioners to succeed in pursuing the writ as it would be for a Supreme Court justice to strike out Babe Ruth, Joe DiMaggio and Mickey Mantle in succession.” Over the course of the Court’s 2007-13 terms, Judge Reinhardt pointed out, the United States Supreme Court ruled against prisoners in all but 2 of the 28 habeas cases it considered.

According to the New York Times[3], today is a time of increasing bipartisan interest in criminal justice reform, and eradication of mass incarceration. The issue includes attention from President Obama and even regret from Bill Clinton.[4] Still, while the Clintons admitted during Hillary’s campaign that the Clinton criminal justice reform initiatives of the 1990s were “wrong”, neither former President Clinton nor Mrs. Clinton, suggested or mentioned AEDPA. Neither acknowledged that AEDPA has caused so many miscarriages of justices and so limited federal habeas review for state petitioners who are deserving of it, that it ought to be repealed. This is a shame. It is more disheartening in light of the petty and ineffectual political gamesmanship that went into AEDPA’s enactment on Clinton’s part, particularly when that is weighed against the huge number of prisoners AEDPA it has damaged (a subject for my next article). One would think the Clintons, said to be so loved by minorities, would favor repeal. But no.

Judge Alex Kozinski, another Ninth Circuit judge, powerfully expresses my own feelings about AEDPA in his writings. He says that AEDPA, as interpreted by the Supreme Court’s conservative majority, renders federal judges powerless to grant potentially innocent petitioners a new trial, to grant them release, or to stop their executions. AEDPA, Judge Kozinski says, “is a cruel, unjust and unnecessary law that effectively removes federal judges as safeguards against miscarriages of justice. *  *  *  It has resulted and continues to result in much human suffering. It should be repealed.”[5]         My sentiments exactly.

[1] http://www.newyorker.com/news/news-desk/the-destruction-of-defendants-rights

[2] Available at: http://repository.law.umich.edu/mlr/vol113/iss7/3

[3] https://www.nytimes.com/2015/07/17/magazine/the-law-that-keeps-people-on-death-row-despite-flawed-trials.html?_r=0

[4] Id.

[5] Id. The New York Times article mentions that Judge Reinhardt agrees with Kozinski, as does John H. Blume, a Cornell law professor who has tracked the law’s effects since its inception.