THE REASONABLENESS OF THE "REASONABLENESS" STANDARD OF HABEAS CORPUS REVIEW UNDER THE ANTITERRORISM AND EFFECTIVE DEATH PENALTY ACT OF 1996.

• Author: Larkin, Paul J.
• Position: AEDPA and the PLRA After 25 Years

ABSTRACT

The Antiterrorism and Effective Death Penalty Act (AEDPA) of 1996 modified the standard of review that federal courts may use when reviewing the legality of a state court's judgment of conviction. Historically, common-law and federal courts reviewing a habeas corpus petition could inquire only into the jurisdiction of the court that entered the judgment. The Supreme Court gradually expanded that review. In 1953, the Court jettisoned that limited re-examination in favor of a standard of de novo review of all properly preserved federal claims. The result was to leave the finality of state-court judgments unsettled. What is more, the Supreme Court's evident disquiet over the states' implementation of the death penalty, coupled with an apparent guerilla war against capital punishment by some federal judges, left the death penalty a punishment in name only. Congress sought to rectify those problems through the AEDPA by limiting federal habeas review to the "reasonableness" of a state court's interpretation of Supreme Court case law. Congress did not return habeas corpus review to the original, jurisdiction-only basis, but it did curtail the ability of federal courts to substitute their interpretations of federal constitutional law for those of the state-court judges. The AEDPA standard of review has been criticized for violating the Article I Suspension Clause, the Article III Judicial Power Clause, and the Fifth Amendment Due Process Clause. Yet, unless the Constitution imposes a ratchet on Congress's ability to define collateral review of state-court judgments, the AEDPA is a lawful exercise of Congress's Article III authority to define the jurisdiction of the lower federal courts.

INTRODUCTION I. THE HISTORY OF FEDERAL HABEAS CORPUS REVIEW A. The Expansion of Federal Review of State Judgments B. The Rationale for the Expansion II. THE AEDPA STANDARD OF REVIEW III. THE CONSTITUTIONALITY OF THE AEDPA'S STANDARD OF REVIEW A. The Reasonableness of the AEDPA's Reasonableness Standard B. The Challenges to the AEDPA's Reasonableness Standard 1. The Suspension Clause 2. The Article III Judicial Power Clause 3. The Fifth Amendment Due Process Clause CONCLUSION INTRODUCTION

Just over twenty years ago, Congress passed the habeas corpus provisions of the Antiterrorism and Effective Death Penalty Act of 1996 (the AEDPA) (1) largely to address the intersection of two of the most controversial criminal-justice issues that had agitated the American legal system over the preceding sixty years: (1) federal-court habeas corpus review of state convictions, and (2) reliance on the death penalty as a punishment for certain crimes. Two motivations spurred Congress to amend the 1867 federal habeas corpus statute that had largely remained unchanged since it became law. One was the belief that, when carried out, the death penalty saves lives by deterring violent crimes that could result in death. The other was frustration with the willingness of some federal judges to prevent the death penalty from being anything more than an abstract on-the-books-only punishment by using federal habeas corpus to fault the state-court trial and appellate processes for rulings that were the subject of reasonable disagreement among fair-minded jurists. (2)

The AEDPA was controversial when it was enacted and remains so in some quarters today. (3) The principal target of criticism has been the act's judicial-review feature. The statute changed the standard of review that federal courts had employed since 1953 when considering the legality of a state-court judgment of conviction. In that year, the Supreme Court of the United States held in Brown v. Allen (4) that the federal courts should review de novo all federal constitutional claims a state prisoner raised to challenge the legality of his confinement. (5) Concluding that the Supreme Court had overreached in Brown, Congress substituted a "reasonableness" standard in lieu of the de novo standard. (6) Since then, various scholars have criticized that feature of the AEDPA, calling for Congress to repeal it and for the courts to hold it unconstitutional. (7) I disagree. The act's revisions are far more faithful to the historic purpose of habeas corpus than the Brown v. Allen approach, and they are consistent with American law's historic reluctance to relitigate fully and fairly adjudicated issues in a never-ending quest for the one true, correct result.

This Article proceeds as follows: Part I will summarize the development of habeas corpus from the common law to the passage of the AEDPA. Part II discusses the new standard of review that statute imposed on the federal courts, especially as the Supreme Court has elaborated how that standard works in practice. Finally, Part III addresses, and finds unpersuasive, the arguments that the new standard violates the Article I Suspension Clause, the Article III Judicial Power Clause, and the Fifth Amendment Due Process Clause.

1. THE HISTORY OF FEDERAL HABEAS CORPUS REVIEW

   1. The Expansion of Federal Review of State Judgments

      The First Judiciary Act (8) was Congress's initial exercise of its Article III power to create a federal judicial system. (9) Section 14 of the act granted federal courts the power to issue writs of habeas corpus, but it expressly exempted cases in which a petitioner was in federal custody pursuant to a judgment of conviction. (10) In so doing, Congress incorporated the common-law rules governing habeas corpus. As Chief Justice John Marshall explained in Ex parte Watkins, (11) a court entertaining a habeas corpus petition could order a jailer to justify someone's confinement, but proof that the person in custody had been convicted by a court with jurisdiction over the offense was dispositive. (12)

      The First Judiciary Act did not in terms empower a federal court to re-examine a judgment of conviction entered by a state court. (13) In 1845, the Supreme Court expressly so held in Ex parte Dorr. (14) Congress did not generally (15) authorize federal courts to review state-court judgments of conviction until 1867. (16) Even after that law took effect, (17) the Supreme Court adhered to the common-law restriction on habeas review. (18)

      Over time, the Court gradually increased the role of the federal courts in habeas corpus. Abandoning the earlier limitations on the power of a federal court to review a judgment entered in a state criminal trial, the Supreme Court broadened the type of claims that a prisoner could assert in federal habeas--from a narrow challenge to the jurisdiction of the trial court, to the fairness of the entire state trial and appellate process, and ultimately to the correctness of a state court's decision on every federal claim. (19) The development happened slowly, but it had a definite trajectory to it. (20)

      The Supreme Court signaled a change in the law in 1915 in Frank v. Mangum. (21) Tried for murder, Frank claimed that a mob atmosphere so dominated his trial that neither the jury nor judge could fairly adjudicate the charge against him. (22) The Court rejected his claim, but did so in part on the ground that the state judicial system had provided him with a "corrective process" to review his claims that the trial-level verdict was the product of "mob domination." (23) Because the state courts had reviewed the evidence in an opinion that had treated Frank's claim seriously but ruled against him--not because a mob trial was permissible, but because the facts did not support his claim that there had been any such improper influence--the Supreme Court refused to order his release. (24) Frank enlarged the scope of review that a federal habeas court may undertake while acknowledging three new points: the then- (and now-) widespread existence of appellate courts was part of the "due process" a defendant can and must receive; those courts can ensure that a defendant's own trial remains within the contemplation of what the Framers had in mind for a "Trial" when they drafted the Constitution; (25) and the state courts' judgment on the merits of a claim should be treated respectfully. (26)

      In 1953, the Supreme Court abandoned its historic understanding of the limits on a habeas corpus action. In Brown v. Allen, (27) the Court held that a state prisoner could raise non-jurisdictional federal claims in habeas corpus, and a federal court was obliged to review them de novo. (28) The majority opinion by Justice Stanley Reed did not acknowledge the drastic revision of habeas corpus that it approved. The Court reviewed and rejected the applicants' claims on the merits, but did not point to any text in the 1867 habeas act requiring de novo review. (29) Indeed, the Court did not even expressly disavow the jurisdictional limitation that had existed for more than a century, let alone explain why plenary review was necessary. (30) Nonetheless, Brown v. Allen was a clear break with prior law. (31) The result was that, by the 1970s, federal habeas review was independent and plenary, which enabled a state prisoner to re-litigate in federal court any federal claim that he had raised in state court, and perhaps even to retry his case. (32) The effect of Brown v. Allen was to utterly transform federal habeas corpus review from a simple, unpretentious, and widely hallowed means of preventing the Sheriff of Nottingham from throwing in jail someone he disliked (33) (or from whom he was trying to extract a backhander) or being unlawfully confined for another reason (34) into a complicated, controversial, and often accursed vehicle that allowed sometimes-haughty federal judges to treat their state counterparts as if they were law clerks rather than equals holding office in a different but parallel judicial system. (35)

      Why did the Supreme Court so reshape federal habeas corpus? It certainly was not due to a material revision to the text of the 1867 habeas statute. Also, the Court did not justify its novel direction based on a scholarly...