From the Bench. Repeal the Antiterrorism and Effective Death Penalty Act to Restore Habeas Corpus

• Author: Hon. Lynn Adelman
• Pages: 6-10

From the Bench

Published in Litigation, Volume 47, Number 1, Fall 2020. © 2020 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be

copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association. 6

HON. LYNN ADELMAN

The author is a federal district court judge in the Eastern District of Wisconsin.

At a time when criminal justice issues

such as mass incarceration are the sub-

ject of considerable public discussion, it is

noteworthy how little attention has been

paid to one of the great legal tragedies of

the modern era: the almost total eviscera-

tion by Congress and the Supreme Court

of the writ of habeas corpus.

Once known as the Great Writ or

the Great Writ of Liberty, habeas cor-

pus has been available since the Magna

Carta as a means by which prisoners can

challenge the legality of their custody.

The writ is explicitly recognized in the

Constitution, and in the Judiciary Act of

1789, Congress conferred habeas jurisdic-

tion on the newly created federal courts.

Then, in the Habeas Corpus Act of 1867,

the Reconstruction Congress extended the

benefits of the writ to former slaves and

others convicted in state courts, enabling

them to challenge the constitutionality of

their convictions in federal court. The de-

cisions of the Warren Court extending the

protections of the Fourth, Fifth, and Sixth

Amendments to criminal defendants in

state courts made federal habeas corpus

an essential remedy for state prisoners.

This was so because many state officials,

including law enforcement officers and

judges, resisted implementing the rights

identified by the Supreme Court.

In 1996, however, led by Newt

Gingrich who was promoting the so-

called “Contract with America,” Congress

passed a bill known as the Antiterrorism

and Effective Death Penalty Act (AEDPA).

The bill had very little to do with either

terrorism or the death penalty. What the

bill did do was make it extremely difficult

for a federal court to grant habeas relief

to a state prisoner whose constitutional

rights had been violated. Sadly, over the

objection of civil libertarians and his own

counsel (former congressman and judge

Abner Mikva), President Clinton signed

the bill, seeking to present himself as be-

ing tough on crime.

AEDPA undermined habeas corpus in

several ways. First, it created numerous

procedural obstacles that state prison-

ers must navigate almost always with-

out counsel. Most habeas petitioners are

poorly educated, many are mentally ill,

and few are capable of effectively pre-

senting their claims. The procedural ob-

stacles created by AEDPA placed them

at an even greater disadvantage. Second,

AEDPA required federal courts to defer

to state court rulings that wrongly inter-

pret the U.S. Constitution as long as the

rulings, however erroneous, are not un-

reasonable. And the Supreme Court has

since made clear that very few state court

mistakes are sufficiently erroneous to

justify a federal court in treating them as

unreasonable. Thus, federal courts must

put their imprimatur on interpretations

of the Constitution that are just plain

wrong. Third, AEDPA barred federal dis-

trict courts from granting relief to prison-

ers based on precedents set by courts of

appeals or other district courts. Rather,

federal district courts may grant habeas

petitions only if the Supreme Court has

weighed in on the issue in a “clearly es-

tablished” determination, a vague and

not well-defined phrase. To make matters

worse, the Supreme Court has interpreted

AEDPA rigidly, almost uniformly rejecting

The Supreme Court

has interpreted

AEDPA r igid l y,

almost uniformly

rejecting prisoners’

claims.

REPEAL THE

ANTITERRORISM AND

EFFECTIVE DEATH

PENALTY ACT TO

RESTORE HABEAS

CORPUS