Justice Thomas, Davis v. Smith, and the Anti-Terrorism and Effective Death Penalty Act:

Why the Supreme Court Should Declare the AEDPA Unconstitutional

            Justice Clarence Thomas is not happy - again.  David Smith was convicted of attempted murder in an Ohio court based in part on the victim identifying him from a photograph.  The Ohio court rejected Smith's argument that the identification should have been excluded from trial because the police had told the victim they knew Smith was the assailant before asking her to identify him.  After exhausting his state court appeals, Smith filed a petition for a writ of habeas corpus with the Sixth Circuit Court of Appeals.  The Sixth Circuit  agreed that the  identification was impermissibly suggestive and its use at trial violated Smith's due process rights under the United States Constitution.  The Circuit Court granted Smith's petition and vacated his conviction.  Smith will now have to be retried.

            Over objections by Justices Thomas and Alito, the Supreme Court denied Ohio's request to review the Sixth Circuit's decision.  Davis v. Smith (No. 24-421).  Thomas and Alito would have granted review and reversed the Circuit Court, allowing Smith's conviction to stand.  In a dissenting opinion, Thomas complained that the Sixth Circuit had once again failed to give sufficient deference to the Anti-Terrorism and Effective Death Penalty Act (AEDPA),  which  limits the circumstances under which federal courts can grant a writ of habeas corpus to a state prisoner.  While Thomas made it clear he strongly disagreed with the Sixth Circuit's conclusion Smith's due process rights had been violated, he mostly took issue with what he saw as the Circuit Court's blatant refusal to adhere to the AEDPA's "highly deferential standard" while impermissibly engaging in a de novo consideration of the merits of Smith's due process claim. 

            Thomas is a big fan of the AEDPA.  He is apparently not a fan of the writ of habeas corpus.  Historically,  the "Great Writ" was a means by which a person could challenge their detention in court on the grounds that it was unlawful.   The writ was an order directing the person having custody of the petitioner to physically bring them before the court and show justification for their continued detention.  (habeas corpus means "you have the body")  In its original form at least, the writ was not a final decision on the merits of the petitioner's claims.  It merely required the person having custody to bring the petitioner to court.  In modern practice, judges rarely order that the petitioner actually be brought into court when granting the writ.  Instead, the court simply orders that the petitioner be released, given a new trial, or provided other specific relief depending on the circumstances of the case.

            Prior to 1867, the writ was available in the United States only to persons held in federal custody who had not yet been convicted at trial.  Congress then expanded the writ to include any person held in violation of the Constitution or Treaties of the United States, whether under  state or federal authority.  More than a century later, Congress passed the AEDPA, which  prohibits issuance of the writ except in cases where the state court decision was based on “an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States.”  The Supreme Court has interpreted that language to mean the writ can be granted only if there is "no possibility fair-minded jurists could disagree that the state court's decision conflicts with this Court's precedents." Harrington v. Richter, 562 U. S. 86, 102 (2011).  Under the AEDPA, the decision to grant or deny the writ no longer depends on whether the petitioner can show his or her detention violates the Constitution.  Instead, the  writ can issue only when the state court decision was so unreasonable in its application of clearly established Supreme Court precedent that no reasonable judge would agree with the decision.  If only 99 out of 100 "fair-minded" jurists would agree that the state court committed constitutional error, the writ cannot issue.  Not only must there be complete unanimity among fair-minded jurists that the state court erred, the state court's decision must also conflict with "clearly established" Supreme Court precedent.  If a petition raises  issues not previously decided by the Supreme Court in a written decision, the writ cannot issue even if it appears clear to the reviewing court that the petitioner's continued detention is unlawful because it violates the Constitution. 

            If the AEDPA was intended to reduce the burden on federal courts of responding to petitions for habeas relief it has had the exact opposite effect.  Trial court and appellate court judges have struggled to find a consistent, rational  methodology for applying AEDPA standards.  How is a judge to know when there is "no possibility that fair-minded jurists could disagree."  Who is a "fair-minded jurist" and who is not?  If the facts set forth in the petition appear to establish  constitutional error, are those facts to be ignored simply because another judge might not agree or because the Supreme Court has not yet had occasion to ruled on a case with sufficiently similar facts?  How similar must the facts be for a prior Supreme Court decision to qualify as "clearly established federal law as determined by the Supreme Court." What if a petitioner presents compelling evidence he or she is likely innocent and was convicted only because of serious constitutional errors?  What if that person is facing the death penalty?  For a judge whose task is to uphold and enforce the law, these are difficult and troubling questions.

            If the intent of the AEDPA was to reduce the number of state court convictions undone by federal judges due to constitutional errors, then it has worked quite well -  not by reducing the number of errors, but by preventing federal courts from being able to decide whether error was committed and whether that error was serious enough to require some form of relief.  Under the AEDPA, even when a judge determines that a petitioner has demonstrated a right to relief due to Constitutional error, the writ must be denied unless the judge also believes that every other "fair-minded" judge would agree and that the state court decision conflicts with "clearly established" Supreme Court precedent.  The result is that a judge must deny the writ even when he or she believes the petitioner's constitutional rights have  been violated.  Needless to say, this goes against the very idea of judging, the supposed goal of which is to arrive at a result consistent with the law.  The AEDPA basically instructs judges to ignore the Constitution except in the most extreme cases and to deny relief even when it appears that the petitioner's detention is contrary  to law.    

            Many commentators have called for the AEDPA to be repealed, as it should be.  But, there is another solution.  The Supreme Court should simply declare the AEDPA unconstitutional.  Invalidating the AEDPA would allow judges to issue the writ whenever it appears that the Constitution requires it.  The vast majority of petitions would most likely continue to be denied, but doing away with the AEDPA would relieve federal judges of the  near impossible task of trying to speculate whether all fair-minded jurist would agree and whether there is a prior Supreme Court case sufficiently on point to qualify as "clearly established" precedent.  Not only would invalidation of the AEDPA result in a more efficient use of judicial resources, it would also lead to better reasoned and more consistent decisions. 

            That the AEDPA is unconstitutional because it violates the separation of powers should be obvious, although no court has yet come to that conclusion.  Article I of the Constitution gives Congress the sole authority to make laws.  Article III gives the federal courts sole authority to decide cases.  The rules for how the legislature goes about making laws is left entirely to each chamber of Congress to  decide for itself.  Similarly, the rules governing how cases get decided, including rules of evidence, standards of proof, reliance on prior decisions, etc., are solely within the discretion of the courts.  Congress may establish the legal standard for issuance of the writ by requiring a petitioner to show his or her detention violates the Constitution, but it has no authority to tell the federal courts how they are to go about deciding whether a petitioner has met that legal standard.  Put another way, Congress can tell the courts what to decide, but not how to decide.    

            The AEDPA likely also violates Article I, section 9 of the Constitution, which prohibits suspension of the writ of habeas corpus except in cases of rebellion or invasion.  In effect, the AEDPA limits the availability of habeas relief to very specific circumstances having nothing to do with either invasion or rebellion.   The result is the suspension of the writ in all other circumstances.  It is no answer to say that the AEDPA merely places limits on the issuance of the writ, but does not suspend it.  By that logic, Congress could place such limits on the writ that as a practical matter would prevent it from being issued  under any foreseeable circumstances, effectively suspending the writ entirely.   

            The Supreme Court would do well to declare the AEDPA unconstitutional.  The AEDPA has increased rather than lessened the burden on federal courts of responding to habeas petitions and has required federal judges to issue lengthy opinions to explain why under the AEDPA a petitioner is not entitled to relief even when it appears they are or may be held in violation of the Constitution.  Those decisions are then subject to appeal at which stage the appellate courts must go through the same process of evaluating whether all conceivable "fair-minded jurists" would agree or whether there is "clearly established" Supreme Court precedent that requires issuance of the writ. 

            The AEDPA has been in effect for nearly 30 years, and the Supreme Court has yet to directly address the question of its constitutionality. With the Court currently dominated by conservative Republican appointees, it seems unlikely that it will do so anytime soon.  Like Thomas and Alito, the remaining conservative justices appear to believe the "societal costs" of overturning state court criminal convictions via the writ of habeas corpus are simply too high.  Perhaps, it has not occurred to them that in the long run the "societal costs" of disregarding the Constitution may be even higher. 

PR