The Antiterrorism and Effective Death Penalty Act (AEDPA): Understanding the Failures of State Opt-In Mechanisms

• Author: Betsy Dee Sanders Parker
• Position: J.D. Candidate, The University of Iowa College of Law, 2007; B.S., Iowa State University, 2004
• Pages: 1971-2000

J.D. Candidate, The University of Iowa College of Law, 2007; B.S., Iowa State University, 2004. I would like to thank the editors and writers of Volume 91 and 92 of the Iowa Law Review for their helpful comments and corrections. I would also like to thank my family for their constant love and support. Finally, I wish to thank my husband, Eric, for his patience, humor, and understanding through all of our law school endeavors.

Page 1971

I Introduction

I have witnessed the agonizing scene in which an unrepresented defendant is asked by the court or the district attorney if he wishes to cross-examine a witness for the prosecution. Instead of asking a question of the witness in the proper form, the accused, startled and confused, makes a statement contradicting the testimony of the prosecuting witness . . . [.] This . . . brings forth sharp official rebuke which quickly ends the defendant's abortive attempt at cross-examination.¹

In the American system of justice, this painful scene is no anomaly; it plays out daily in courts across the country. It might be easy for the casual observer to disregard the defendant's quandary-to write off his predicament as one of his own making. It is easy to assume that the only reason an individual would not have an attorney in court is if he refused one.

Consider the scene again, only this time, the unrepresented individual defends his life. In this case, the unrepresented prisoner has already been convicted of murder. Death is his sentence. This is his last appeal-his very last appeal. The already agonizing scene now becomes excruciatingly painful. But in the American system of justice, this scene is no anomaly. There is no constitutional requirement that a state must provide an attorney for an indigent prisoner in his final stages of appeal-even if the penalty is death.²

The death penalty has long been an issue of public debate. From the early days of American history, intelligent minds have disagreed over issues such as its effectiveness at deterring crime and whether the government even possesses the power to inflict such a penalty.³ Today, the debate over the death penalty continues.⁴

Page 1972

One important aspect of the death penalty is its effect on other judicial proceedings. The finality of a death sentence is unlike that of any other penalty because a prisoner is suddenly confronted with the reality of impending death. Such finality frequently prompts an especially vociferous pursuit of habeas corpus claims.⁵ These claims are often a desperate attempt by the petitioner to find a violation of the prisoner's constitutional rights, thereby allowing for relief from the impending sanction. These prisoners often cannot afford attorneys to assist them in their habeas claims.⁶ For some of these prisoners, the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") provides the opportunity to be represented by appointed counsel.⁷

This Note examines the requirements of the AEDPA and the actions that a state must take in order to comply with its requirements. Part II provides a brief summary of the development of the death penalty in the United States, the Sixth Amendment right to counsel as applied to indigent defendants in capital cases, and habeas corpus claims in the United States.⁸ In addition, Part II introduces the AEDPA, describes its terms, and considers the Act's effect on habeas corpus claims of indigent state prisoners in death penalty cases.⁹ Part III surveys the states' attempts to opt in to the Act's provisions and explains why every attempt has failed.¹⁰ Finally, Part IV provides guidance to states in order to facilitate attempts to opt in to these provisions of the AEDPA.¹¹

Page 1973

II Historical Developments

A The Development of the Death Penalty in the United States

The death penalty has been an accepted form of punishment since ancient times.¹² A death sentence in England prior to the mid-1800s could take one of a number of different forms, including hanging, burning, drowning, stoning, beheading, or even drawing and quartering.¹³ The colonists brought the less mutilative of these forms of capital punishment with them to America.¹⁴ Each colony decided whether to allow capital punishment and, if so, for what offenses. Some colonies, such as West Jersey, had no capital crimes.¹⁵ Other colonies, such as Virginia, used capital punishment for even petty offenses.¹⁶ Overall, most colonies fell somewhere in the middle.¹⁷

In the United States today, the states and the federal government each decide the penalties for crimes within their jurisdictions.¹⁸ As of May 15, 2007, thirty-eight states and the federal government maintain death-penaltyPage 1974 statutes.¹⁹ Today, by far the most common form of the death penalty among states and the federal government is lethal injection.²⁰

Even as the methods of imposing the death penalty have become more humane, death is a sentence the vast majority of persons convicted of crimes would prefer to avoid. For this reason, capital sentences are heavily litigated.²¹ This litigation gives rise to several issues, one of which is whether the prisoner is required to research and file all of his own appeals or whether he is allowed-or even entitled to-counsel.

B The Development of the Sixth Amendment Right to Counsel

The right to an attorney is deeply rooted in American history. Criminal defendants have enjoyed the right to an attorney, at least to some extent, since colonial times.²² Under English common law, a defendant charged with a capital crime did not have this right.²³ A defendant charged with lesser petty offenses, however, did.²⁴ The American system developed differently. This was due, in part, to the emergence of a prosecutorial system and to the increased recognition of the importance of individual rights.²⁵ Of the thirteen colonies, twelve chose to reject the English rule that deniedPage 1975 counsel to defendants in capital crimes.²⁶ Each of those colonies chose instead to fully acknowledge the right to counsel in all criminal prosecutions.²⁷

The Framers incorporated the colonial position recognizing the right to counsel in criminal cases into federal law through the U.S. Constitution and the Bill of Rights. The Sixth Amendment to the U.S. Constitution created the right to an attorney for defendants in federal criminal cases.²⁸ The Due Process and Equal Protection Clauses of the Fourteenth Amendment of the U.S. Constitution similarly secured that right in state courts.²⁹

Prior to 1932, however, the right to an attorney existed only in limited form. State courts extended the right only so far as to allow the defendant to secure an attorney for himself.³⁰ State courts were not required to appoint attorneys for indigent defendants who could not afford to hire an attorney.³¹ In Powell v. Alabama,³² the U.S. Supreme Court changed this interpretation. The Court finally expanded the right to counsel, recognizing that "in a capital case, where the defendant is unable to employ counsel, and is incapable adequately of making his own defense . . . it is the duty of the court, whether requested or not, to assign counsel for him as a necessary requisite of due process of law."³³

Since Powell, the Court has further extended the reach of the Sixth and Fourteenth Amendments. In Gideon v. Wainwright, the Court ensured the right to counsel for all felony defendants in state court.³⁴ Thereafter, the right no longer was limited to capital cases; it encompassed all felony offenses. Thus, under the Fourteenth Amendment, after Powell and Gideon,Page 1976 all indigent defendants at the state court level have the same Sixth Amendment rights provided for indigent defendants in federal court.³⁵

In Powell and Gideon, the Court required that the state appoint an attorney through the trial phase of criminal proceedings.³⁶ Neither case, however, addressed whether a constitutional right to an attorney on appeal exists. While no constitutional provision explicitly requires that states grant convicted criminals a right to appeal their convictions, every state has chosen to grant this right.³⁷ Therefore, each state must determine what circumstances require a state court to appoint an attorney on appeal. This is because the U.S. Supreme Court has held that when a state grants a direct appeal as a matter of right, the state must appoint counsel for an indigent defendant for that appeal.³⁸ There is no distinction between the claims of a capital defendant and those of a noncapital defendant-the rule applies in either case.

As Murray v. Giarratano demonstrates, however, the Fourteenth Amendment does not require states to appoint counsel for a defendant in a capital case beyond the first appeal, which is granted to all noncapital defendants.³⁹ As it stands today...