CODIFYING INNOCENCE: A MODEST STEP TOWARD REFORM.

• Author: Calabrese, J. Philip
• Position: AEDPA and the PLRA After 25 Years

The twenty-fifth anniversary of the enactment of the Antiterrorism and Effective Death Penalty Act of 1996 (1) provides an opportunity for a few observations. These reflections come not from systematic study, but from the perspective of a judge who, as one small part of his practice, formerly represented a number of clients in federal district and appellate courts petitioning for writs of habeas corpus. Under the statute, relief is rare. From the perspective of attorneys general and those who defend against claims, few have merit. Therefore, the statute appropriately limits relief, even if cases take too long to reach their inevitable result, often on procedural grounds that foreclose collateral review of the merits.

On the other side, those who represent petitioners and study practice and procedure under the statute in the legal academy largely view the AEDPA as a lost cause. In their view, the statute fetishizes procedure at the expense of fundamental constitutional rights and too narrowly circumscribes relief. Additionally, the intricacies the statute layers on the writ--in a federal system in which Article III presumes, as a matter of constitutional law, that State courts can and will vindicate federal rights (2)--impose significant access-to-justice burdens on overwhelmingly pro se petitioners. Those in this camp see the AEDPA as sitting on the precipice of collapsing under its own weight as a result of the cumulative effect of these developments over the last two and a half decades. But however much they favor repeal of the AEDPA, such a legislative step appears highly unlikely.

In the AEDPA, Congress asserted its prerogative to shape the writ, then abandoned the field. Since then, the federal courts, and the Supreme Court in particular, drive common-law making under the statute. This ad hoc interpretation of the statute has contributed greatly to the complexities attending habeas practice, particularly involving issues of procedural default or claims of ineffective assistance of counsel, as most petitions invariably seem to do. At a high level, these judicial developments promote the overall congressional goals embodied in the AEDPA. Though Congress could make federal litigation over the writ more "effective," and better promote the goals of comity and finality, with legislation cutting through at least some of the procedural thicket that has grown up around its statutory creation, it shows no interest in doing so.

As the federal courts have lived with the AEDPA, another phenomenon has grown up alongside it over the last quarter century or so, primarily but not exclusively in state courts. A growing number of exonerations has laid bare the need for effective post-conviction and collateral proceedings, at least in a limited number of cases. These exonerations initially resulted from advances in DNA technology (3) and later from other flaws and deficiencies in the criminal justice system, such as junk science involving bite marks and arson investigation, witness identification, and false or coerced confessions. (4) At some level, the writ seeks to vindicate claims of innocence--at least so long as a Statecourt conviction results from a substantive constitutional...