The day after Georgia executed Troy Davis in 2011, former president Bill Clinton weighed in to say he was bothered by the case. Seven of the nine witnesses who testified against Davis recanted, explaining they’d been coerced by police or were trying to win favor on their own charges. There was no biological evidence tying Davis to the crime. And three people had since said another man confessed to them.
“The thing I found strange was that even though there were some people who apparently wanted to change their testimony when there was a hearing before the court, the lawyers for the defendant didn’t bring them on to say what they had to say. So it’s an unusual case,” Clinton said. He suggested the federal appeals process slow down so new evidence could be considered.
But for Davis’s supporters, Clinton’s concern was a little hard to swallow. The case wasn’t really that unusual. As is often the case when better-trained, better-funded lawyers take over a case with a questionable conviction, Davis’s defense team didn’t have a problem finding previously undiscovered exculpatory evidence. The problem was getting a federal court to consider it, thanks to a law for which Clinton was directly responsible.
That law is the Antiterrorism and Effective Death Penalty Act (AEDPA), which Clinton signed 25 years ago this week. This pernicious, dizzyingly complicated law created a minefield of procedural barriers and deadlines that, if not scrupulously followed, prohibit federal courts from reviewing the merits of state convictions. It essentially requires federal courts to defer to the states when it comes to the constitutional rights of the accused.
Passed in response to the 1995 Oklahoma City bombing, AEDPA covered a lot of different areas of federal policy, but its most controversial provisions restrict federal habeas corpus, or the right of state prisoners to challenge their convictions in federal court. Legal commentators have pointed out that it was the first time in centuries that the legislature of a western democracy had put restrictions on the “Great Writ.”
Supporters of these restrictions say the bombers should not be permitted to delay their executions with frivolous appeals (though Timothy McVeigh would later waive his appeals). It wasn’t a good-faith argument. Terrorism is almost always prosecuted as a federal crime, and well over 99 percent of the prisoners affected by AEDPA are state prisoners who have neither been convicted of terrorism-related charges nor been sentenced to death. For them, especially the wrongly convicted, there’s no advantage to drawing out appeals.
Joe Biden, then a member of the Senate, was among the first to recognize that the restrictions went too far. He proposed several amendments, from stripping the restrictions from the bill entirely to applying them only to federal prisoners. Biden and other opponents of the bill made the now-prescient argument that without the amendments, the restrictions would make it nearly impossible for the federal courts to consider credible claims of innocence. By June 1995, Biden appeared to have secured enough moderate Republican votes to strip the bill’s most onerous habeas restrictions.
Then, Clinton went on “Larry King Live” to say he supported AEDPA without the amendments. Five Democratic senators switched sides. Biden’s amendments failed, and Clinton signed the bill into law the following year.
Supporters of the habeas restrictions argued that the states were doing just fine at protecting the rights of the accused. That isn’t true now, but it was particularly untrue then. The 1980s and 1990s were rife with junk forensics, prosecutor misconduct, ritual sex abuse panics and inept court-appointed defense lawyers who slept and drank their way through trials. State judges and justices, many of whom were elected on tough-on-crime campaign promises, didn’t seem to care. And the same year the Senate debated AEDPA, Congress cut funding to the death penalty “resource centers” which were exposing these problems in federal courts. The Georgia Resource Center, which was handling the Troy Davis case, lost 70 percent of its budget, leaving just two lawyers to juggle 80 death penalty cases.
A 2009 study found that before AEDPA, between one-half and two-thirds of state death row prisoners were able to obtain some sort of relief in federal court — a good indication of just how inadequate the states had been at safeguarding constitutional rights. Between 2001 and 2006, the figure dropped to 12 percent. Since then, even as DNA testing uncovers more and more wrongful convictions, the Supreme Court has applied AEDPA in increasingly restrictive ways. It was AEDPA that prevented the federal courts from overturning the conviction of Brendan Dassey, the teen from the Netflix documentary “Making a Murderer” whose admission to police bore all the hallmarks of a false confession. The high court has also cited the law in also barring federal courts from reviewing convictions won with forensic evidence now disproven by science. Claims that might likely otherwise succeed on the merits never even get considered because, without a lawyer to assist them, prisoners are tripped up by the law’s rigid technicalities.
“It’s a myth that violent prisoners get freed on technicalities,” says Richard Bourke, a death penalty defense lawyer in New Orleans. “But because of AEDPA, we do execute people on them. And technicalities regularly keep innocent people in prison.”
Congress could fix all of this tomorrow. Lawmakers could consult with defense lawyers, legal scholars, federal judges and prosecutors, repeal AEDPA, and replace it with something more just and fair. The last 25 years have shown the Clinton administration should have listened to Biden in 1995. But, now, Biden’s own administration can lead an effort to fix the problems he predicted, and once tried to prevent.
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