One of the more curious rulings
the Supreme Court handed down last month, overshadowed by its landmark
health care and same-sex-marriage decisions, concerned a death-row
inmate named Hector Ayala. In 1989, Ayala was charged with participating
in the execution-style murder of three men in an auto-body shop in San
Diego, an apparent result of a heroin deal gone bad. During jury
selection for the trial, prosecutors struck all seven of the prospective
jurors who were black or (like Ayala) Hispanic.
The Supreme Court has ruled
that systematically excluding jurors on the sole basis of race violates
the Constitution, so Ayala’s lawyer protested. The judge asked the
prosecution for an explanation for the strikes in a private session and
deemed it legitimate — without letting the defense hear or challenge the
rationale. Ayala was convicted and sentenced to death.
On
appeal, the California Supreme Court said the trial judge had erred but
deemed the error “harmless,” letting Ayala’s conviction and sentence
stand. The United States Court of Appeals for the Ninth Circuit disagreed,
found that Ayala’s trial was unfair and ordered the state to either
retry or release him. When the case reached the United States Supreme
Court this year, it mostly garnered attention
for a short concurring opinion in which Justice Anthony M. Kennedy
denounced solitary confinement, the form of imprisonment Ayala has
endured for most of the past 25 years. But Kennedy joined the court’s
four other conservative justices in ruling against Ayala in June. The
majority opinion chided the Ninth Circuit for misunderstanding the role
of a federal court. A federal court, Justice Samuel A. Alito Jr. wrote,
was merely supposed to stand guard against “extreme” judicial
malpractice by state courts — not “substitute its own opinions for the
determination made on the scene by the trial judge.”
But
how, exactly, do you draw the line between the two? This is a fight
that is waged over and over again when federal judges try to grant
relief to prisoners convicted in state courts — which handle a vast
majority of criminal cases — under circumstances of questionable
fairness. It’s also a fight that federal judges increasingly lose in the
Supreme Court — to the point that some of them are now raising the
alarm that the law is systematically failing to provide the necessary
safeguards against miscarriages of justice. Congress, they say, should
fix it.
This
state of affairs is the product of a semi-obscure 1996 law called the
Antiterrorism and Effective Death Penalty Act. Passed with bipartisan
support and signed by President Bill Clinton in the wake of the Oklahoma
City bombing, the law was based in part on Newt Gingrich’s “Contract
With America” and was designed to limit appeals of death-penalty
sentences brought via the “Great Writ,” as it’s known, of habeas corpus.
As a legal concept, habeas corpus dates to medieval England. The Latin
translates literally as “you have the body.” The idea is that a prisoner
has a right to petition a court to show that he or she is being held
illegally.
Habeas
rights aren’t entirely unshakable; President Abraham Lincoln famously
suspended them during the Civil War, and whether or not a similar
suspension was warranted in terrorism cases after the Sept. 11 attacks
was central to the challenges brought by detainees held in Guantánamo
Bay. But these are exceptional circumstances; for more prosaic criminal
proceedings, states provide post-conviction processes for demonstrating
procedural failings in a trial. After that, a prisoner may bring a
habeas petition to a federal court, which has traditionally had the
power to overturn a state conviction. “Habeas lies to enforce the right
of personal liberty,” Justice William Brennan wrote in 1963; “when that
right is denied and a person confined, the federal court has the power
to release him.”
Supporters
of this approach point out that state judges, who often face
re-election bids, may feel more pressure to push habeas aside in the
name of being tough on crime than federal judges, whose lifetime
appointments insulate them from politics. State courts also have far
higher caseloads, leaving them with less time and fewer resources to
spend on habeas petitions, which often leads to summary denials.
Conservative
critics, on the other hand, have generally bristled at this federal
oversight. They point out — as Republican congressional supporters of
the Antiterrorism and Effective Death Penalty Act did in the 1990s —
that the additional means of appeal the procedure provides can add years
to the process. Many states don’t provide free counsel for habeas
petitions unless the death penalty is involved (and sometimes not even
then). That leaves courts to sort through tens of thousands of filings
written by prisoners representing themselves every year.
The
Antiterrorism and Effective Death Penalty Act changed the balance of
state and federal power over habeas petitions, by stipulating that a
federal court may step in only if the previous proceedings in state
court “resulted in a decision that 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.” But over the past two
decades, the Supreme Court’s unsparing interpretation of this language
has become an enormous source of frustration on the federal bench — to
the point that two influential judges on the Ninth Circuit bench, the
liberal Stephen Reinhardt and the more conservative Alex Kozinski, have
each recently called for its demise. They argue
that the law, as interpreted by the court’s conservative majority,
trips up federal judges who try to undo unjust convictions, rendering
them powerless to address procedural unfairness — and, at worst,
preventing them from granting a potentially innocent person a new trial
or release, or even stopping his or her execution.
In a spring article in The Michigan Law Review,
Reinhardt writes that the court has fashioned “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.” The maze has expanded since Alito succeeded
Justice Sandra Day O’Connor in 2006, moving the court to the right on
criminal justice, among other issues. Over the course of the court’s
2007-13 terms, Reinhardt found that the Supreme Court had ruled against
prisoners in all but two of the 28 habeas petitions it had considered.
Judge Kozinski, for his part, attacks the law in a preface
to The Georgetown Law Journal’s Annual Review of Criminal Procedure,
which is remarkable in the breadth of its criticism of the American
criminal justice system. Kozinski, a Reagan appointee, has voted to
uphold many criminal penalties, including death sentences. But viewing
the law from the perspective of the federal bench, he writes, “we now
regularly have to stand by in impotent silence, even though it may
appear to us that an innocent person has been convicted.”
By
way of example, Kozinski points to the Ninth Circuit’s 2006 review of
the conviction of Shirley Ree Smith, who was sentenced to 15 years to
life after she was found of guilty of shaking her 7-week-old grandson,
Etzel Glass, to death in 1996. There was no evidence that Smith had
previously mistreated Etzel in any way. And while he had subdural
bleeding in his brain, it was minimal, and only one of the three
symptoms classically associated with shaken-baby syndrome, a diagnosis
that has become increasingly controversial.
The
California Supreme Court declined to review Smith’s case. When it
reached the Ninth Circuit, the three judges who reviewed her habeas
petition said they approached it “with a firm awareness of the very
strict limits that the Antiterrorism and Effective Death Penalty Act
places” on federal courts. Still, the Ninth Circuit judges looked at new
medical evidence that called into doubt the validity of Smith’s
conviction, found that “there has very likely been a miscarriage of
justice in this case” and released her from prison, where she had
already spent 10 years. In 2011, the Supreme Court reversed
the Ninth Circuit, over a strong dissent from Justice Ruth Bader
Ginsburg (joined by two other justices), saying that the appeals court
had run afoul of the law. The following year, Gov. Jerry Brown commuted Smith’s sentence to time served.
The Antiterrorism and Effective Death Penalty Act is also at the heart of one of the most disputed death-penalty cases
of the last decade. Troy Davis was convicted in Georgia of killing an
off-duty police officer who came to the aid of a homeless man in a
Burger King parking lot. After the Georgia courts denied Davis’s
appeals, he went to the federal courts with a habeas petition,
describing new evidence of his innocence: Seven of the nine eyewitnesses
who testified against Davis at trial had recanted,
and new witnesses implicated someone else, whom the police ruled out as
a suspect early in their investigation. Procedural rules barred Davis
from bringing this evidence on appeal. The United States Court of
Appeals for the 11th Circuit ruled that he could not have a hearing for his new evidence in federal court, either.
In
this case, the Supreme Court did step in and order such a hearing.
“Imagine a petitioner in Davis’s situation who possesses new evidence
conclusively and definitively proving, beyond any scintilla of doubt,
that he is an innocent man,” Justice John Paul Stevens wrote. But the decision prompted a dissent from Justice Antonin Scalia, joined by Justice Clarence Thomas, that includes this protest: “This court has never
held that the Constitution forbids the execution of a convicted
defendant who has had a full and fair trial but is later able to
convince a habeas court that he is ‘actually’ innocent.”
As many commentators
have pointed out, this statement is both true and stone cold. “The
proper question is, and always should have been, whether the detainee
has a constitutional right to be free,” Reinhardt writes of habeas
corpus. But 19 years of Supreme Court decisions based on the
Antiterrorism and Effective Death Penalty Act have fundamentally
narrowed the scope of habeas review, from a fight over the merits of a
claim of innocence or fairness to one over narrow process issues: Has
the state time limit for filing a habeas petition passed? Is the
petition barred by some other rule? This is what the federal courts now
spend their time parsing.
It
is no surprise that the Supreme Court’s interpretation of the law has
lowered the rate of success for habeas petitions. But it has also failed
at its stated aim of reducing time-consuming appeals. According to a 2007 study
by Nancy J. King, Fred L. Cheeseman II and Brian J. Ostrom, the time
courts spend processing habeas cases has actually increased on average.
“To the extent that [the law’s] provisions were designed to streamline
the overall processing of individual cases, that result has not been achieved,” the authors concluded.
John H. Blume, a Cornell law professor who has been tracking the law’s effects since its inception, once argued
that it “has been less ‘bite’ than ‘hype.’” Now he agrees with
Reinhardt and Kozinski, he told me in an email, calling the Supreme
Court’s expansion of the law “agenda-driven judicial policy-making.”
This is a moment of increasing bipartisan interest in criminal justice reform, including sustained attention from President Obama and regret from Bill Clinton
about mass incarceration. About the role the Antiterrorism and
Effective Death Penalty Act plays, Kozinski reaches a clear and dramatic
conclusion. It “is a cruel, unjust and unnecessary law that effectively
removes federal judges as safeguards against miscarriages of justice,”
he writes. “It has resulted and continues to result in much human
suffering. It should be repealed.”