The gutting of habeas for state defendants

The following editorial by John Blume, Sheri Johnson and Keir Weyble was published in the May 16, 2011 edition of The National Law Journal.

Fifteen years ago last month, President Clinton signed the Antiterrorism and Effective Death Penalty Act (AEDPA), which made substantial changes to federal habeas corpus law. Despite his assurance that "[f]ederal courts will interpret these provisions to preserve independent review of federal legal claims," we have witnessed the evisceration of habeas in the intervening years, making justice substantially more difficult to obtain for those wrongfully convicted in state courts. Unfortunately, we are now hearing calls for more radical restrictions of habeas in a wrong-headed bid to address budget concerns.

Habeas corpus, expressly guaranteed by our Constitution, serves the criminal justice system as a final check to ensure justice has truly been served. Literally translated as "that you have the body," a habeas corpus challenge enables an individual held in the government's custody to challenge the legality of the detention.

The AEDPA's provisions have stymied federal courts by placing overly restrictive limits on a person's ability to have the merits of his or her case heard. Petitioners are barred by time limits that run too quickly, are overly complex and can be difficult to calculate, even for seasoned attorneys. Even more damning, the law prohibits federal courts from remedying miscarriages of justice; they are powerless to correct many of the state courts' misinterpretations of U.S. constitutional or federal law.

The net result is that the AEDPA has effectively closed federal courtrooms to prisoners with legitimate claims. This closing is all the more troubling given the failure of states to provide adequate counsel and meaningful post-conviction review in their own systems. Many states do not appoint counsel for post-conviction review, no matter how serious the prisoner's allegations or how incapable he or she is of presenting these complex and technical claims. Other states provide wholly inadequate compensation to counsel, resulting in the appointment of lawyers with little experience or incentive to commit the time necessary to fully develop their client's case. These and other hurdles make clear that the wrongfully convicted can often only find justice through federal habeas.

Despite the wrongfully convicted who are languishing in prison because of the AEDPA's failures, there are those who would use the current budget debate to call for further restrictions on habeas petitions. Under these proposals, habeas would be available only in capital cases and those cases in which new evidence of innocence has been found. These are misguided and costly proposals. Habeas is absolutely essential to correcting wrongful convictions, and with no alternatives, habeas filers who today would make constitutional claims would instead have to make innocence claims, which could result in far more lengthy, fact-intensive litigation.

As we reflect on the anniversary of the AEDPA and consider the injustices it has wrought, there are reforms that state and federal lawmakers could adopt to effectively reduce the need for habeas review and increase the likelihood that meritorious habeas petitions receive a full and fair hearing. First and foremost, providing effective, adequately resourced counsel for indigent defendants in the trial and appellate phases is the best chance the criminal justice system has of getting it right the first time. Passionate attorneys with the resources to investigate their clients' cases will be able to address potential problems that arise during trial. Since many habeas claims are related to ineffective assistance of counsel, this is a critical reform. Prisoners should also be appointed competent counsel for post-conviction review. Evidence shows that when petitioners are given counsel to guide them through the labyrinth of post-conviction review — as they are in capital cases — win rates go up.

Although adequate counsel will significantly reduce the need for federal review, errors will still occur in state proceedings. Congress should allow federal courts to perform robust, substantive review of habeas petitions, with the authority to correct state court holdings that erroneously apply U.S. constitutional and federal law. Beyond these proposals, there are numerous other reforms Congress can adopt to improve habeas.

Post-conviction review in the federal courts may cost some money, but certainly for the wrongfully convicted — indeed for all Americans wary of an overreaching government — the constitutional right to challenge one's detention is priceless. Congress must reform the AEDPA to restore this right to the hallowed position our founding fathers intended.

John Blume, Sheri Johnson and Keir Weyble are professors at Cornell Law School.