A 1996 Law That Keeps People in Prison (And on Death Row) On Technicalities

The Supreme Court has just extended legislation that many have never heard of. Experts say the “Anti-Terrorism and Effective Death Penalty Act” is actually putting innocent people behind bars, and most of the cases it affects have nothing to do with terrorism or capital punishment.

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If you even half-paid attention in high school history class, you might be forgiven for thinking that federal courts are the most powerful courts in the land.

After all, they’ve been responsible for landmark rulings about everything from abortion rights to school desegregation — disputes so well-known, the cases are household names: Roe v. Wade. Brown v. Board of Education.

Despite those high-profile decisions, when it comes to protecting prisoners’ rights and avoiding executions of innocent people, the top courts in the land are oddly impotent.

Early May 2022, the Supreme Court told Arizona prisoner Barry Jones that even though four federal judges agreed he may well be innocent of the 1994 murder that sent him to death row, the high court couldn’t overturn his conviction or stop Arizona from executing him. (Jones had argued he was hindered by poor lawyering at multiple stages of his case.)

In a 6-3 decision on May, in a case titled Shinn v. Martinez Ramirez, the conservative justices said they couldn’t do anything about it, because of one wonky law passed by Congress in 1996 and signed by then-President Bill Clinton.

Misleadingly called the Antiterrorism and Effective Death Penalty Act (AEDPA), the law was created during the tough-on-crime ‘90s, to keep violent prisoners from getting released on what politicians called technicalities.

But now, experts say the law actually keeps innocent people in prison on technicalities — and most of the cases it affects have nothing to do with terrorism or capital punishment.

In these cases, the importance of finality outweighs any claims the prisoners might make, the court’s conservative majority said. “Serial relitigation of final convictions undermines the finality that ‘is essential to both the retributive and deterrent functions of criminal law,’” Justice Clarence Thomas wrote.

Judge Clarence Thomas has been defined by his critics as one of the most conservative jurists on the Supreme Court (Photo/Stetson University)

While many judges and prosecutors complain about the length of the appeals process, these days there are few defenders of the 1996 law — other than state attorneys general who prosecute appeals in federal courts. “Lots of people are stuck,” said Christina Mathieson, director of the National Habeas Institute, which advocates for prisoners in these cases. “The gates to the federal courts are closed.”

Here are five things you should know about the law known as AEDPA (“ed-puh”):

1. It was created after the Oklahoma City bombing.

The idea that federal courts could provide state prisoners with an added layer of protection from state government overreach dates back to the founding of our country. The framers envisioned federal judges as a safeguard to ensure rogue states weren’t ignoring the U.S. Constitution.

But in the 1990s, with crime rates and death penalty approval ratings both at historic highs, a small but vocal minority of Republicans had had enough of what they saw as prisoners filing endless, frivolous appeals that deprived victims of the finality they deserved.

They wanted to set stricter filing deadlines, narrow the claims state prisoners could ask federal judges to review, and limit the power of federal judges to overturn state convictions.

When Timothy McVeigh bombed a U.S. federal building in Oklahoma City in 1995, Republicans had recently swept the midterm elections, and Clinton saw an opportunity to work with incoming House Speaker Newt Gingrich on a tough-on-crime initiative.

The law was passed by Congress in 1996 and signed by then President Bill Clinton (Photo/Canva Premium).

The “Effective Death Penalty Act” — part of Gingrich’s legislative agenda — was rolled into Clinton’s Antiterrorism Act. The newly-created AEDPA passed both the House and Senate by wide margins, even as then-Senator Joe Biden sought, unsuccessfully, to hold back some of the law’s more onerous provisions, warning that it would keep innocent people in prison — though he ended up voting for it anyway.

2. The law makes it harder for many prisoners to win appeals.

Understanding why this is true requires a bit of background on how appeals work. Most criminal cases — more than 95% — go through state courts. But if someone wants to keep fighting their conviction, they can take the case to federal court.

But the 1996 law made it a lot harder to do that, adding complex technical restrictions for both prisoners and judges — changes that Brian Stull, a senior staff attorney with the ACLU Capital Punishment Project, likened to “chutes and ladders and Byzantine procedures that a prisoner has to navigate.”

As a result, far fewer prisoners were able to get federal courts to consider — much less agree with — their claims of prosecutorial misconduct, inadequate lawyering, and other problems with their trials. In 2009, one study found that before the 1996 law, between half and two-thirds of state prisoners sentenced to death had their arguments vindicated in federal court. Afterward, that number fell to 12%.

3. The law was intended to speed up death row appeals, but failed.

Before the 1996 legislation took effect, people in prison didn’t have an exact deadline for how long they could wait to bring their claims to federal court, according to Rob Dunham of the Death Penalty Information Center.

“You just couldn’t unreasonably delay,” he said.

But now, prisoners have just one year to prepare and file their federal appeals. If that sounds like a long time, remember that death penalty cases often require intense investigations to track down witnesses and uncover new evidence. As a result, prisoners regularly lose their one shot at a federal appeal just because the clock has run out.

Marshall Project investigation in 2014 found that 80 death row prisoners had missed the one-year deadline and their chance at an appeal in federal court — sometimes by just a single day — due to mailing or filing mishaps.

Despite the problems the one-year deadline can cause, it’s failed to correct the problem it aimed to solve: The average time between sentencing and execution has doubled since AEDPA passed.

4. It doesn’t just affect terrorism and death penalty cases.

The name “Antiterrorism and Effective Death Penalty Act’ is a bit of a misnomer. Although the law affects both terrorism and death penalty cases, it also affects other criminal appeals, including everything from drug crimes to murder. By some estimates, more than 99% of prisoners affected by AEDPA have not been convicted of terrorism or sentenced to death.

In part, the law’s effect is so broad because of the long-standing lack of investment in indigent defense — when poor defendants are provided lawyers. Public defenders are generally “under-qualifiedunder-compensated, and under-resourced,” says Christina Swarns, Executive Director of the Innocence Project.

This makes it hard for them to put up a vigorous defense at trial or on appeal, which requires tracking down witnesses, gathering documents and consulting experts. This lack of investment, in turn, makes mistakes and oversights more likely.

“There is no fair fight at the front end,” Swarns said. “For this demand for finality to have integrity, we have to make damn sure what we’re doing on the front end is working. And we know it is not.”

5. It makes federal courts less powerful.

AEDPA changed the balance of power in criminal appeals. Federal judges can no longer overturn state court decisions — even those that violate federal law — except in very narrow circumstances.

“If you’re a federal judge, you can’t disagree or overrule an obviously wrong ruling in state court simply because it wasn’t wrong enough,” says George Kendall, a death penalty attorney who has argued before the Supreme Court.

In the case the Supreme Court decided this week, a second man, David Martinez Ramirez, argued that the state of Arizona violated his Constitutional right to an effective lawyer when they assigned him an attorney who failed to look into the developmental delays and egregious abuse he suffered as a child — evidence a competent attorney would have used to persuade the jury that he deserved life in prison instead of death.

The Supreme Court is currently under majority control of conservative-leaning justices by a 6-3 margin (Photo/Canva Premium)

An appeals court agreed Arizona violated the Sixth Amendment by appointing an attorney who admitted she was not “prepared to handle ‘the representation of someone as mentally disturbed as … Ramirez.’”

Still, the Supreme Court said his death sentence should stand because he didn’t follow the correct procedure in filing his appeals.

*This story was originally published in The Marshall Project. All rights reserved.

*The Marshall Project authorized the Itempnews Project to reproduce in English and Spanish the original article entitled: The 1990s Law That Keeps People in Prison on Technicalities.

*Additional reporting by Maurice Chammah

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