AEDPA & Troy Davis: The Death Penalty, Actual Innocence, and Federal Deference

Magna cartaThere are few political footballs that’ve been kicked around more, and with greater reprecussions, than the writ of habeas corpus. The “great writ,” of course, traces its origin to the Magna Carta — “no free man shall be taken, imprisoned … or any other wise destroyed … but by lawful judgment of his Peers” — and finds it current home in Article I, § 9, cl. 2 of the federal Constitution. Broadly defined as forbidding detention by any authority in violation of the Constitution, the Writ finds specific definition in Title 28 of the U.S. Code: § 2241 covers federal detention by the executive; § 2255, detention by conviction in a federal court; and, significantly, § 2254 covers detention by a state authority.

The state habeas right necessarily implicates grave questions of federalism. Left unrestrained, a right to parallel review in the federal courts — one shot in state court and one full, complete, subsequent litigation in federal court — could make state criminal law a nullity, and drown the federal courts in endless criminal appeals. It sounds callous, but this is a real concern, and I do not intend to shortchange it with what comes later.

Accordingly, Congress limited the right to habeas corpus in the Antiterrorism & Effective Death Penalty Act of 1996, passed by a huge margin and signed into law by President Clinton.  In relevant portions, the AEDPA added subsection (d) to § 2254, again, covering state habeas proceedings —

(d) An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim–
(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.

You have no idea how much ink has been spilled trying to figure out what “clearly established Federal law” means. It’s truly shocking. In any event, AEDPA drew almost immediate criticism. However, it is emphatically not a suspension of the right of habeas corpus. The War on Terror cases, and especially Boumediene v. Bush, 553 U.S. ___ (2008), explicitly hold that a limited habeas right, or even the substitution for a habeas-like remedy, is not a suspension. Moving on…

AEDPA effected nothing less than a sea-change in habeas law by sharply curtailing habeas challenges based on procedural failings in the state court, i.e., violations of the Fourth Amendment limitation on unlawful search & seizure, which had already been substantially limited. See, e.g., Stone v. Powell, 428 U.S. 465 (1976). The Act’s more troubling implications, however, concern its application to claims of “real innocence.”

Established case law holds that habeas only lies to correct legal errors – factual errors are the province of state courts, and once the state process has been exhausted, you’re left with its factual conclusions.  Herrera v. Collins, 506 U. S. 390 (1993) (this opinion predates AEDPA but still governs).  In other words, the state trial process forecloses any question of actual guilt, because legal guilt is established, permanently, before habeas review ever begins. The limited window for review of factual errors in § 2254(d)(2) and (e)(1) is cold comfort.


In the same case, Herrera, Justice O’Connor – you’re missed, truly – expressed grave concern for any legal regime that would foreclose an appeal premised on “actual innocence,” or those few cases where newly-discovered evidence, or gross miscarriages of justice by the state courts, reveal that the defendant should never have been found guilty in the first place, because he never committed the crime (“[T]he execution of a legally and factually innocent person would be a constitutionally intolerable event”).

Apart from Justice O’Connor’s Herrera concurrence, multiple appellate courts, and subsequent dicta from other Supreme Court opinions, have expressed similar misgivings with the possibility that AEDPA would foreclose a compelling case of “actual innocence.” For example, “procedural default” — just what it sounds like, the legal equivalent of “dropping the ball” — almost always forecloses habeas review, except, we think, in cases involving “actual innocence.” See Murray v. Carrier, 477 U.S. 478 (1986); Sawyer v. Whitley, 505 U.S. 333 (1992); Schlup v. Delo, 513 U.S. 298 (1995). AEDPA may be incapable of closing that loophole; we don’t know. The Supreme Court has never precisely resolved the issue, because it’s never been properly presented.  And, until Monday, they weren’t forced to think about it too hard, either.

Troy Davis changed all that. Those more educated than I may his case fairly well (I’m new to it).  Basically, Mr. Davis was convicted in the Georgia state courts of murdering a police officer in the course of a felony.  He was sentenced to death.  Since his conviction, most (all?) witnesses have recanted, and it now appears more likely than not that the prosecution’s star witness actually killed the officer, which has a way of changing things. Mr. Davis ran out of state remedies, but yesterday, the Supreme Court transferred his original writ of habeas corpus to the Southern District of Georgia, with instructions to:

Receive testimony and make findings of fact as to whether evidence that could not have been obtained at the time of trial clearly establishes petitioner’s innocence.

Note carefully that the order does not authorize the use of evidence that couldn’t have been discovered at trial. An argument for an evidentiary hearing on new evidence would be extremely difficult to make. See Valdez v. Cockrell, 274 F.3d 941 (5th Cir. 2001).

Even if confined to evidence available at the time, this is an extraordinary measure, but a legal one. First, the Supreme Court is perfectly entitled to order the relitigation of issues before a state tribunal. It’s not as scary as Justice Scalia thinks it is, or a real departure. Second, Davis’ case fits within a credible gap in the Supreme Court’s understanding of AEDPA. As noted above, AEDPA’s application to claims of “actual innocence” is unclear, and what hints exist point roughly in Davis’ favor.

Simply put, then, Davis’ case, before Monday, was a true toss-up. Because it resolves that doubt in favor of a final, closer look at Mr. Davis case, before the death sentence irrevocably forecloses review, I can’t help but feel that justice was done. Apart from the fine questions of legality, this might be one of those times where it’s okay to make instrumental arguments. Do we really want a legal system that ends a life on a technicality? It’s a question of highest morality, and probably one where “empathy” ought indeed to play a part (h/t John, on that point, to be developed more later). In true constitutional toss-ups like these, the process of constitutional decisionmaking becomes what my favorite law professor called a game of “error deflection”: acknowledging that you might be wrong on the law, on which side do you, as a judge, want to risk erring? Certainty and potential life, or doubtful finality, and death? The lady or the tiger?



  1. […] precious, and not to be squandered needlessy. In habeas review of state convictions, for example, we bend over backwards to keep potentially duplicative litigation out of the federal courts, in deference to cost, and […]

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  3. […] not necessarily prohibit the execution or continued incarceration of prisoners. (A recent Supreme Court decision in the Troy Davis case questioned, but did not eliminate, this reality.) And while the pace of […]

  4. […] not necessarily prohibit the execution or continued incarceration of prisoners. (A recent Supreme Court decision in the Troy Davis case questioned, but did not eliminate, this reality.) And while the pace of […]

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