P E N A L T Y B O X
A much-needed reform seemed poised to hasten executions --
until federal judges got their hands on it.
ANDREW PEYTON THOMAS
Mr. Thomas, an attorney in Phoenix, is a former assistant attorney general for
NEVER has the grim reaper been denied so unjustly for so long. Between 1977
and 1996, the average time that a condemned prisoner sat on death row almost
tripled, from just over 4 years (51 months) to over 11 years (134 months). In
some states, especially the unfortunate Western block of states trapped in the
sprawling, liberal Ninth Circuit Court of Appeals, delays were even longer. In
California, the average delay is 13 years and 5 months. Arizona's capital
cases languish in the federal courts for more than 8 years on average.
In April 1996, Congress tried to do something about this dysfunctional
system by passing the Antiterrorism and Effective Death Penalty Act (AEDPA).
The act greatly reined in habeas-corpus petitions, the suits that death-row
inmates file in federal court for review of their state death sentences; it
ensured that habeas petitions could no longer be dragged out for a decade or
Such suits would have to be filed within 180 days after either final
affirmation of the condemned man's conviction by a state court or expiration
of the time for seeking such review. The act also sought to impose some
discipline on federal judges. It required district-court judges to render a
decision on a capital habeas petition within 180 days of its filing. Federal
courts of appeals were given 120 days to hand down their rulings after the
reply brief was filed. "No delay in disposition shall be
permissible because of general congestion of the court's calendar,'' the act
stated. Habeas petitions are to be "given priority" over
"all noncapital matters," and federal courts may consider only those
claims raised by the petitioner in state court.
The AEDPA seemed a reasonable, studied response to the seemingly
interminable delays in executions of first-degree murderers across the land,
delays that resulted largely from the federal courts' leisurely processing of
federal habeas appeals (generally, federal judges are fond neither of the
death penalty, nor of working under a deadline). But it already seems clear
that the AEDPA is an abject failure, a metaphor for the very problem it was
meant to help remedy an out-of-control federal judiciary, impervious to the
claims of the rest of the political system, or even of simple justice.
According to the AEPDA, for a state to "opt in" to the new system
and take advantage of the habeas deadlines, it must meet certain requirements.
The state must establish a "mechanism for the appointment, compensation,
and payment of reasonable litigation expenses of competent counsel in state
post-conviction proceedings brought by indigent prisoners." This
must offer counsel to all poor inmates under capital sentence. States with a
"unitary" appellate system (chief among them is California) must
establish standards of competency for appellate counsel and provide them with
Whom did the act entrust with determining whether a state has met the
opt-in requirements? Congress gave this critical responsibility to the very
federal judges whom the act was meant to control. Not surprisingly, they have
been in no hurry to declare the states in compliance. To date, not a single
state has been permitted to opt in to the AEDPA's system of expedited capital
Two years after passage of the AEDPA, death-penalty appeals in the federal
courts remain as protracted as ever. The uniformity and alacrity with
which federal judges across the country have
declared their states in conflict with the AEDPA suggest a broad-based
judicial animus. Federal courts in California, Pennsylvania, Washington, Ohio,
Maryland, Florida, Virginia, and Tennessee have deep-sixed those states'
requests to opt in to the act. Pennsylvania, bowing to judicial
opposition, threw in the towel by freely stipulating in court that it did not
satisfy the act's requirements.
Nowhere has the judicial bias against the AEDPA been more transparent than
in Ashmus v. Calderon, a California case. The case was heard by federal Judge
Thelton Henderson, best known as the author of the ruling last year that the
California Civil Rights Initiative violated the equal protection clause of the
Fourteenth Amendment. Not only did Henderson declare that California fell
short of qualifying for the "benefits" of the AEDPA (he placed the
term "benefits" in derisive quotation marks), he issued an order
forbidding California even to argue in court that it was in compliance with
Henderson also accused California of improperly "threatening" to
invoke the act -- simply because the state had claimed in court that it met
the act's requirements. "Defendant's statements," Henderson opined,
"leave little room for doubt that, absent judicial relief, they will
continue to make such threats and assertions." The Ninth Circuit upheld
Henderson's ruling in almost every particular. California has appealed the
decision to the U.S. Supreme Court, arguing that, at the very least, the First
Amendment gives a state the right to argue in court that it has complied with
the act. The high court granted certiorari and heard oral argument on March
Other judges have been less strident than Henderson, offering instead an
assortment of state-specific reasons for turning down opt-in requests. The
dominant theme is that the states have failed to provide counsel that the
courts deem competent. At first blush, this might seem an appropriate and even
laudable reason for judicial resistance. But judges have used a narrow and
perhaps self-interested definition of ``competent,'' in some cases requiring
specialized expertise in habeas appeals. This restricts the pool of qualified
counsel to the point where states can have trouble fielding enough attorneys
to handle their capital caseloads.
Congress bears its own share of responsibility for this judicial
foot-dragging. The language of the AEDPA is what has given judges their wide
discretion, particularly the act's failure to define key terms such as "competent."
Moreover, by imposing a myriad of new requirements on those states wishing to
opt in, the AEDPA reveals something even more disturbing: a lack of
congressional trust that the states can and will provide adequate counsel
absent micromanagement from the federal judiciary. If federalism means
anything, surely it means that the states should be permitted to run their own
In fairness to Congress, it inherited a jurisprudential mess when it
grappled with this habeas situation. The federal courts had piled penumbra
atop emanation in manufacturing and defending a dubious right to ``effective''
assistance of counsel on appeal (the right was minted in 1985 in the Supreme
Court case of Evitts v. Lucey). But instead of picking a deserved fight with
the judiciary on a questionable right of recent vintage, Congress punted.
It is not too late for Congress to correct these flaws. It should repeal
the AEDPA's requirements so that the states may benefit from the act's
death-penalty reforms without being saddled with vague, expensive mandates.
The states should be trusted once again to hire qualified counsel for capital
appeals without supervision by the same federal judges the AEDPA is meant to
curb. Condemned petitioners, of course, may still file habeas appeals with the
assistance of counsel -- but the courts will be taken out of the business of
deciding what is ``competent'' counsel.
When the Democrats and the courts complain, the Republicans can properly
point to the judicial obstruction of the AEDPA to date. They might also
note that hardened murderers on death row have been able to avoid execution
for more than a decade on average in large part because their advocates are
quite competent indeed -- seated on the bench, with gavels in hand.
times since 12/23/99