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.


[2] Available at:


[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.

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