As a result of the Troy Davis execution last week, there has been a lot written about the death penalty. And one of the focuses has been on the unfairness of the AEDPA. For example, I liked this discussion about the Davis case that mentions the AEDPA. Here's what it says about the AEDPA:
Compounding the effects of a hostile Supreme Court, in 1996 President Bill Clinton signed the Anti-Terrorism and Effective Death Penalty Act,which further reduced the ability of potentially innocent defendants to assert their rights in federal court. A post-Oklahoma City bombing response that followed the common pattern of using a horrible tragedy as a pretext for pushing through pre-existing priorities, the AEDPA made it much more difficult for prisoners who—like Davis— were presenting new evidence rather than claiming clear violations of federal law.
Good stuff. But while there definitely is a lot of shame to be spread around in the Davis case, I have been wondering how much of it should be attributed to the AEDPA and its original adherents (such as President Clinton -- I have no idea how what he says here is relevant to the Davis case).*
*Clinton also seems to have a little bit of buyer's remorse with the AEDPA as we previously saw with Bob Barr. They have nobody but themselves to blame for its unfairness.
Of course, it's no secret how much I dislike the AEDPA. There is no doubt that it causes a significant amount of plain old unfairness. It has some fundamental problems that fairness dictates must be fixed (assuming we can't get rid of the statute altogether).
Setting that aside though, did the AEDPA result in unfairness in the Davis case? I guess I'd have to go back and look through the lower court decisions to see for sure. If I had to guess, I am sure the AEDPA limited Davis in his federal habeas petition as much as it limited the average petitioner. That's a bad thing, obviously, and it should get the much needed attention that it seems to be getting.
But with respect to the actual innocence part of the Davis case, the AEDPA hatred can only go so far. Despite the AEDPA, Davis was allowed to bring the actual innocence claim. And he was given a full evidentiary hearing on it -- something that the AEDPA (post-Pinholster) now almost otherwise forbids. Certainly, if Scalia had his way in Davis, the AEDPA would have cut Davis off. But a majority of the Court gave Davis the chance.
Don't get me wrong, I am not saying that it was the finest day for habeas. It is sad that it had to take the extraordinary remedy of an original writ in the Supreme Court for the hearing to happen (and of course I am not missing the irony that the original writ had to be filed as a result of the extreme restrictions in the AEDPA). But the hearing did happen and the AEDPA didn't prevent it.
I guess that what I am saying is that I am happy that new light is getting shed on the unjust AEDPA. There is a lot of basic unfairness in the statute. I am just not sure that the Davis case shows how unfair the statute really is.
But at the same time I do believe that, unfortunately, there will be a case where the AEDPA is fully to blame for an unfair result that, like Davis, will result in an execution of someone who has shown significant reasons to believe he is innocent. While Davis may not have been the example of that, we should not have to wait for that to happen before the unfairness in the statute is addressed.
Let me sum it up like this: AEDPA = unfair. AEDPA not the biggest problem in the Davis case. But that should not stop a reevaluation of the fairness of the statute to prevent a future injustice.