For the last 25 years, we’ve been living in the era of the Anti-Terrorism and Effective Death Penalty Act (AEDPA). It’s been a period of unprecedented and excessive deference to state courts achieved via bewilderingly complicated procedural labyrinths that block death-sentenced prisoners’ and people serving lengthy sentences access to federal courts. The outcome: in both death and non-death cases, for the first time, the federal courts became virtually unavailable to review sentences from state courts, no matter how questionable those cases might be.
Legislation speedily passed by Congress and signed into law by former President Bill Clinton in 1996, in the wake of the Oklahoma City Bombing, AEDPA essentially gutted the right of people in prison and facing execution to challenge their detention. This right, the writ of habeas corpus, also known as the Great Writ, allows the federal court to release someone who is being unconstitutionally detained. One of the most egregious aspects of AEDPA is a strict-one-year deadline for filing in federal court from when the state appeal is finished.
As Liliana Segura of the Intercept explains in her close examination of the origin of the law, AEDPA not only came out of a hasty response to terrorism but also through Democrats’ increasing desire to align themselves with so-called “tough on crime” policies for political gain. As Republicans and a conservative judiciary advocated for speeding up the death penalty, Clinton and his administration saw the Oklahoma City Bombing as an opportunity to show his enthusiasm for capital punishment was just as robust as the reddest Republican (Apparently, his unspeakable cruelty in the Rector case didn’t quite do it). Under the cover of the heinous terrorist bombing, Clinton signed one of the most draconian, damaging criminal justice laws in American history.
The impact of AEDPA has been immense, harming not only all the people who have been unable to fairly challenge their convictions, but also their families and loved ones. The human suffering seems immeasurable. Recently, Radley Balko, an excellent long-form journalist who we often praise on the Open File, published a column – the second in a series – on AEDPA, arguing for the law to be repealed. It isn’t the first time he’s called for legislators to fix the law. Balko’s breakdown of the absurd standards under AEDPA and the extent of harm it imposes – past and present – is a must-read for anyone concerned about the state of America’s criminal justice system.
We’ve also written about the far-reaching effects of the law and its application here, particularly when it comes to prosecutorial misconduct claims. Simply put, AEDPA often blocks federal courts from hearing prosecutorial misconduct claims on their merits, reducing cases to battles over technicalities about when and what can and cannot be considered. As readers of the Open File already know, prosecutors frequently withhold facts and information that they should share with defense counsel. As a result, defendants are regularly denied access to favorable evidence at trial, sometimes even through state post-conviction proceedings, despite the U.S. Supreme Court’s decision in Brady and subsequent cases that withholding such material is a violation of a defendant’s constitutional rights. This is why Brady violations are one of the most severe forms of misconduct that a prosecutor can commit.
It’s impossible to know how frequently Brady violations occur; what we do know is that when they come to light, it is often many years later. This is the crucial intersection with AEDPA. If a defendant is lucky enough to have a lawyer to help try to track down such evidence, which most incarcerated people do not, it can still take years of discovery requests and legal wrangling to get evidence. Of course, if a defendant ever gets access to illegally withheld evidence, it’s almost always long after the absurdly short one-year-countdown for filing imposed under AEDPA has come and gone.
In the AEDPA era, over and over, regardless of the nature of the suppressed evidence, defendants seeking review in federal courts are told, “it’s too late; you should have raised these issues in a timelier fashion.” The current system cruelly ignores the fact that the legal system is designed to move at a glacial pace, that constitutional claims take time to develop, and that most defendants are unrepresented and must navigate the courts without the necessary skills.
There are also other ways AEDPA stacks the deck against defendants. Under the law’s stringent standards, and the Supreme Court’s increasingly restrictive interpretation of AEDPA, federal courts are not likely to allow a defendant to bring new evidence forward without first bringing that evidence to state court. And the whole reason AEDPA is so devastating is that decisions and outcomes from state courts are not always reliable; federal review can be crucial to justice. As 9th Circuit Judge Stephen Reinhardt pointed out in his 2015 Michigan Law Review Article:
Although there are many reasons why state courts are unable or unwilling to afford the same dedication to federal constitutional rights as are federal courts, the most obvious is that federal judges have life tenure and salary protection, while many state judges do their job under the threat of an election challenge if they issue or join in unpopular decisions, especially in death penalty cases. While state judges who decide criminal appeals face the possibility that they will be labeled “soft on crime,” federal judges are free to decide such issues secure in the knowledge that the unpopularity of their decisions can pose no threat to their job security. Federal judges also have the advantage of more experience enforcing individual constitutional rights, as well as a special obligation to the Constitution. Indeed, the protection of the federal Constitution is the fundamental reason we have federal courts: that is simply the most important function federal judges perform.
If the state court denies the defendant’s claim and the defendant returns to federal court, the defendant then faces yet again another uphill legal battle: he or she must convincingly argue why the federal court should not interpret AEDPA in its most inflexible manner. This means convincing the federal court that the state court’s ruling is reviewable and reversible, which is no small feat in a time of increasingly conservative justices. Federal courts have also been overruled by the Supreme Court for not showing enough deference to lower court decisions.
No matter how compelling the new evidence of a Brady violation is, defendants must then meet the Brady standard, showing that the suppressed evidence was both favorable to the defense and also “material” to the outcome of the trial. That requires courts to look backwards in time and estimate whether, had the evidence been disclosed, there is a reasonable probability the defendant would not have been found guilty. That’s to say, at least one juror would have arrived at reasonable doubt. This “crystal ball” subjective assessment is just another of many factors working against defendants who are trying to get courts to recognize that their original trials were not fair because of prosecutorial misconduct.
Unfortunately, as they do with the AEDPA statute, courts regularly misinterpret and impose the strictest interpretation of the Brady standard. The result is a system that regularly upholds lower courts’ opinions that suppressed Brady evidence should have been uncovered earlier, and that, additionally, while the prosecutor may have violated the law by failing to disclose, there’s no showing of “prejudice,” meaning that even if the evidence had been presented at trial it wouldn’t have affected the outcome.
Despite a handful of cases in which defendants have successfully litigated Brady violations, the cumulative effect of AEDPA and the ‘materiality’ requirement in the Brady test make it absurdly difficult for a person in prison to challenge an unfair and unconstitutional conviction. Additionally, with so few judicial findings of Brady misconduct and reversals, the judicial system continues incentivizing prosecutors to keep defendants in the dark about exculpatory evidence in the government’s possession. It’s a predictable outcome, when higher courts are overwhelmingly denying relief to defendants based on procedure over fairness. Why would a prosecutor hand over information that could assist a defendant, if he can win a conviction and move on, knowing the likelihood of reversal is slim to nil?
Under the current Biden administration, there is finally a window of opportunity to repeal this awful law and replace it with something fairer. As Balko points out, for all the “tough on crime” policies Biden supported, he always disagreed with and criticized the habeas provisions passed under AEDPA and anticipated many of the consequences, even if he ultimately voted for the law. If Biden wants to repair his criminal justice record, AEDPA is the place to start.
