<< News Scan | Main | First Responder >>


Judge Kozinski, Habeas Corpus, and the Elephant in the Living Room

| 4 Comments
Judge Alex Kozinski has a preface to the current issue of Georgetown Law Review that has been the subject of much discussion.  Eugene Volokh has reproduced it, minus the footnotes, in a series of posts at the Volokh Conspiracy.  The first one is here.  Volokh describes Kozinski as a "conservative" in the title of the initial post and a "libertarianish conservative" in the text, but lately he has been more libertarian than conservative, at least in criminal law.

Reading the brief segment on habeas corpus, and specifically on the "deference" standard of 28 U.S.C. § 2254 (in this post on VC), I thought of our old friend the elephant in the living room.  That is the huge problem that everyone knows about and no one wants to talk about, so they talk about other things.

Here is the Volokh version (sans footnotes) in the indented block quotes with interlaced comments by your humble blogger.  AEDPA refers to the Antiterrorism and Effective Death Penalty Act of 1996.

Prior to AEDPA taking effect in 1996, the federal courts provided a final safeguard for the relatively rare but compelling cases where the state courts had allowed a miscarriage of justice to occur.
Cases where the federal courts prevented a miscarriage of justice were rare.  But what about the cases where the federal courts caused a miscarriage of justice?  That is the elephant in the living room.  Are you going to address that?  Are you even going to mention it?
One of the better-known examples of this is the case of Ron Williamson, who in 1994 was just 5 days away from being executed for a murder of which he was eventually cleared by DNA evidence. He was saved when U.S. District Judge Frank Seay entered a stay of execution that began a process culminating in Williamson's exoneration. The case is described in depth in John Grisham's non-fiction book, The Innocent Man.
Yes, that is a well-known example, but cases of actual innocence in capital cases (not to be confused with DPIC's misleading "exonerated," which is nothing of the sort) are extremely rare.  Their existence may support an argument for a change in the law geared to actual innocence, but it does not support an across-the-board return to the problems AEDPA was enacted to correct.

Further, nothing in AEDPA prevents a stay of execution like the one issued in the Williamson case.  The stay Judge Kozinski mentions was issued on the first federal habeas petition.  These stays are issued routinely after AEDPA.  Indeed, if we could finally implement Chapter 154, a portion of the law being blocked by a federal court injunction right now, AEDPA would make such stays automatic in states where that chapter applies.

The "5 days away from being executed" is misleading.  Before AEDPA, there was no statute of limitations on habeas corpus petitions.  To move the case along to the next stage, states were forced to set execution dates that everyone knew were going to be stayed just to get the defendant to file his next petition.  That is no longer necessary, fortunately, and we have AEDPA to thank for it.

The federal court safety-value was abruptly dismantled in 1996 when Congress passed and President Clinton signed the Antiterrorism and Effective Death Penalty Act. Hidden in its interstices was a provision that has pretty much shut out the federal courts from granting habeas relief in most cases, even when they believe that an egregious miscarriage of justice has occurred.
"Hidden in its interstices"?  My God, Judge Kozinski, were you hiding in a cave while AEDPA was being debated?  Have you read nothing of its legislative history since?  By no stretch of the imagination was this provision hidden.  It was front and center in the debate.  I haven't counted the words in the Congressional Record, but I think it was debated more than all the other habeas provisions put together.

Abruptly?  Habeas reform had been kicking around Congress for 43 years when AEDPA was enacted.  After the Supreme Court announced the rule of de novo review in Brown v. Allen (1953), the state chief justices asked for legislative correction, and the idea had been proposed multiple times since.  The Powell Committee made its proposal for habeas reform in 1989, and it was another seven years before a bill including that reform among others was finally enacted.  Abruptly?

We now regularly have to stand by in impotent silence, even though it may appear to us that an innocent person has been convicted.
Again, if you have a proposal targeted to the very few cases of actual innocence, let's hear it.  The proposal you are actually making would enable miscarriages of justice in favor of clearly guilty criminals far more often than it would correct them in favor of actually innocent, wrongly convicted defendants.

Not even the Supreme Court may act on what it believes is a constitutional violation if the issue is raised in a habeas petition as opposed to on direct appeal.
Sure it can, if it takes the case up at the state collateral review stage.  Montgomery v. Louisiana, before the high court right now, is such a case.  The celebrated Gideon v. Wainwright was such a case.

Furthermore, it is not true that the federal courts cannot act to correct violations.  If the state court opinion is contrary to or an unreasonable application of Supreme Court precedent, the federal courts can correct it.  Given that the protections for defendants in the judge-created expansions of the Bill of Rights are many times larger than the real, legitimate, democratically enacted Bill of Rights, a violation of the real Bill of Rights that is not contrary to clearly established law is a rare bird indeed.

There are countless examples of this ...
That might be true if "this" refers to violations of what the Ninth Circuit would like to expand the law to be.  If it refers to violations of what precedents binding on the state courts actually require, it is not true.  If it refers to convictions of innocent people going uncorrected because of §2254, I do not believe it is anywhere close to true.  It certainly has not been demonstrated.

... but perhaps the best illustration is Cavazos v. Smith, the case involving a grandmother who had spent 10 years in prison for the alleged shaking death of her infant grandson -- a conviction secured by since-discredited junk science. My court freed Smith, but the Supreme Court summarily reversed (over Justice Ginsburg's impassioned dissent) based on AEDPA.
Mrs. Smith's case is indeed a very good example -- of why federal habeas corpus is not necessary to correct actual miscarriages of justice.  She did not go back to prison for a single day.  Governor Brown granted her clemency, as noted in this post.

Also noted in the same post is a prime example of the Ninth Circuit causing a miscarriage of justice when it ignores the limits of AEDPA, as it often does.  "Troy Brown was guilty as sin of a horrible rape of a little girl.  The case was not capital murder only because she survived, no thanks to Brown."  The Ninth Circuit wrongly granted him habeas relief, invoking a rule that, if the judgment had stood, would have precluded retrial.  Fortunately, the Supreme Court reversed, unanimously, with a little help from their friends.

What does Judge Kozinski say about cases like Brown?  Nothing.  What does he say about the many, many cases correctly decided by state courts and wrongly overturned by the Ninth Circuit before AEDPA or in cases not subject to it because the law was not retroactive?  Nothing.  That is the elephant in the living room.

Let us suppose for the sake of argument, Judge Kozinski, that you are always right.  Are your colleagues always right?  Say the California Supreme Court unanimously affirms a conviction, holding that a certain procedure used at trial over the defendant's objection is constitutional and noting (correctly) that there is no U.S. Supreme Court precedent to the contrary.  When the case comes to the Ninth Circuit, the panel is Judges Reinhardt, Pregerson, and Tashima.  They say no, the California Supreme Court is wrong, this procedure is unconstitutional.  Do you seriously believe that this panel is more likely to be right than the California Supreme Court?  I do not.  I think it is far more likely to be wrong.

That is the conclusion that Congress came to in 1996.  The standard that passed was not anyone's idea of ideal, but it is the standard that a majority could agree on in a hammered-out compromise.  It allows the federal courts to correct clearly wrong state court decisions but limits their ability to commit clear errors of their own.  Should we throw it out two decades later and return to the status quo ante?

AEDPA is a cruel, unjust and unnecessary law ...
What kind of argument denounces a law as "unnecessary" without even mentioning the necessity that motivated it?  What kind of argument denounces a law as "unjust" without even mentioning the injustices it was passed to correct?  What kind of argument denounces a law as "cruel" without mentioning the cruelty of denying justice to those victims and families of victims who would see the perpetrators of the crimes against them let off lightly by judges who casually make up new rules to throw out trials that were correctly conducted under the rules in effect at the time?

... that effectively removes federal judges as safeguards against miscarriages of justice. It has resulted and continues to result in much human suffering.
In my experience, very, very rarely is federal habeas corpus about miscarriages of justice.  Most of the time it is about a clearly guilty criminal trying to get off with less than he deserves.  Once more, with feeling, if you want a reform targeted to actual innocence, Judge Kozinski, let's hear it.

It should be repealed.
It should be strengthened.

4 Comments

Kozinski probably still resents the Uttecht v. Brown decision---in which he tried to save a horrible murderer.

Kent --

Have you sent this to Prof. Volokh?

I posted a link as a comment to his post. C&C readers are cordially invited to cruise over there and "like" it, and on the FedSocCrim Facebook page as well.

I suspect Judge K's response to Kent's dissection of his inaccurate AEDPA comments would be: "Don't confuse me with the facts. My mind is made up."

And, when it comes to many criminal law and procedure issues, I would classify Judge K as a "liberal." Indeed, on some criminal law issues, among the most liberal on the Ninth Circuit.

I suspect that Judge K's potential brush with the criminal justice system (Google "Alex Kozinski" & "Pornography") might be behind many of the views he expresses in the Preface.

Leave a comment

Monthly Archives