The Washington PostDemocracy Dies in Darkness

Opinion It’s time to repeal the worst criminal justice law of the past 30 years

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In 2000, two Chicago-area men were convicted of the same crime with the exact same evidence. New evidence later emerged that should have exculpated both. But only one was exonerated. The other man was prevented by the Wisconsin Supreme Court from challenging his conviction. The former is now a prominent attorney; the latter, a registered sex offender.

In 2011, the Supreme Court overturned a ruling in the U.S. Court of Appeals for the 9th Circuit that a woman convicted of murdering her grandson with discredited “shaken baby syndrome” evidence should get a new trial. The high court declared that, although the woman might well be innocent, that wasn’t something for the federal courts to decide.

Finally, in 2016, when a Texas judge ruled for the state in a crucial dispute over the legality of a man’s death sentence, she didn’t write her own opinion. Instead, she adopted the prosecution’s brief word for word and put her name on it. Worse, she issued her “ruling” before the defense could file its own brief with new evidence. Which means she couldn’t have read it. Again, the federal courts refused to intervene.

The failures in these cases all originated in state courts. Under our system, when a state violates the constitutional protections of a fair trial, the federal courts are required to intervene. The right to judicial review of an unlawful detention, also known as the writ of habeas corpus, is enshrined in the Constitution and dates back to 13th-century England.

But in 1996 Congress took a chisel to habeas corpus with the Antiterrorism and Effective Death Penalty Act (AEDPA). Attorneys who represent people challenging their convictions, such as Mississippi’s Humphreys McGee, say the AEDPA and the Supreme Court rulings that followed have suffocated federal review. “It’s been a 25-year thicket of real through-the-looking-glass s---," McGee says. And the law’s repeal or reform is long overdue.

The AEDPA came several years after a spike in crime that began in the early 1980s and peaked around 1991. By the time the AEDPA became law, crime rates were in the first few years of a 20-year free fall. But the two major parties were in a frenzied competition over who could look toughest on suspected criminals. The bill also came shortly after the Newt Gingrich-led “Republican Revolution,” a movement built on law-and-order rhetoric and promises to devolve more power to the states.

At the same time, though, early DNA testing had begun to show the criminal justice system was far more fallible than commonly thought. The technology was young — by the end of 1995, DNA had exonerated just 37 people. But even then, those cases raised questions about the reliability of forensic evidence and eyewitness testimony, and the behavior of police and prosecutors. Innocence Projects sprang up around the country, and law schools established clinics to seek out other bad cases. According to the National Registry of Exonerations, in the 213 years before the first DNA exoneration in 1989, the United States saw a total of 418 exonerations. In the 32 years since, there have been 2,733.

Yet at the same time DNA should have forced us to confront the shortcomings of the criminal justice system, the AEDPA all but slammed the federal courthouse door closed on the wrongly convicted.

The AEDPA’s most destructive provision is arguably its deference to state courts. Previously, a federal court could review constitutional claims without considering state courts’ previous rulings. The AEDPA requires federal judges to defer to state courts even when they believe those courts are wrong. In fact, the Supreme Court has essentially ruled that, to be overturned, a state court ruling must be so unreasonable that its judges are unfit to sit on the bench.

Even on the rare occasion a federal court might make that finding, the AEDPA also imposes a gantlet of deadlines and procedural barriers. The law is so complicated, even seasoned post-conviction attorneys say they’re often flummoxed by it. This, they say, is by design. “The goal of AEDPA is to avoid adjudicating these cases on their merits,” says McGee. “The law is loaded with tripwires that let federal judges throw out claims without bothering to consider them.”

Once a prisoner’s appeal has gone through the state appeals and supreme courts, his case enters a phase called post-conviction. This is often when he first has access to the prosecutor’s file, police notes and other evidence not shared at trial, the sort of evidence that can prove a wrongful conviction. It’s also typically the first time a new attorney can review the trial attorney’s performance.

The cruel irony is that once a case is in post-conviction, it’s also much more difficult to get state courts to reconsider it. Many states have also passed their own “mini-AEDPAs” limiting access to their own appellate courts, further restricting the rights of the accused.

“AEDPA abdicated constitutional rights to the states just as states were requiring more deference to their lower courts,” says Richard Bourke, a post-conviction attorney in New Orleans. “So you get this quantum of deference that grows exponentially at each level, to the point where constitutional rights are now mostly in the hands of elected, low-level circuit court judges.”

And there’s one additional layer of iniquity: Except in death penalty cases, indigent defendants lose their right to an attorney once in post-conviction. So just when the wrongly convicted are most likely to discover evidence that could free them, they not only face a procedural minefield even a seasoned lawyer would struggle to navigate, nearly all of them also face it alone. Consequently, for every AEDPA injustice exposed by post-conviction lawyers, countless others may never be known.

In a series of columns over the next several months, I’ll look at how the AEDPA was passed, how it works in the real world, the injustices it has wrought and what we can do to fix it.

The good news is that much of this can be fixed. Congress could repeal or reform the AEDPA tomorrow. And for all the criticism of his criminal justice record — most of it justified — Joe Biden was one of the most vocal critics of the AEDPA’s habeas provisions. The then-senator warned of dire consequences if those provisions passed.

History has proved him right.

Read more:

Radley Balko: There’s overwhelming evidence that the criminal justice system is racist. Here’s the proof.

Radley Balko: Study finds cognitive bias in how medical examiners evaluate child deaths

Radley Balko: 21 more studies showing racial disparities in the criminal justice system

Ruth Marcus: If you don’t believe systemic racism is real, explain these statistics

Juliene James and Susan Mangold: The juvenile justice system is stacked against poor families