Federal Judiciary

Another Critique of AEDPA ? From an Unlikely Source

By Robert Loblaw

Evans v. Thompson, 07-1014 (1^st Cir., April 16, 2008)

With the Anti-Terrorism and Effective Death Penalty Act of 1996, Congress stripped the federal courts of their traditional habeas powers over state court convictions. Traditionally, when a habeas petitioner raised a constitutional complaint about his conviction, federal courts applied circuit law to determine whether a constitutional violation had occurred, or, if there was no circuit law on point, the court would resolve the constitutional question in the first instance, creating new precedent.

AEDPA radically changed this traditional model of decision-making. The new law required federal courts to defer to state court decisions on federal constitutional issues except in extreme circumstances. The result is that federal courts are no longer free to apply (much less create) their own law when resolving habeas petitions from state inmates; instead, they must determine whether the state courts? decision violates “clearly established federal law, as determined by the Supreme Court.”

Habeas petitioners across the country have mounted a variety of constitutional challenges to AEDPA; so far, all challenges have failed. But AEDPA?s successful march through the circuits has not been without dissent. Several predictable left-wing judges have railed against AEDPA. Here?s one example.

Today, two less likely critics join the anti-AEDPA bandwagon: moderate Clinton appointee Kermit Lipez and the maverick Reagan appointee Juan Torruella. The two dissent from the First Circuit?s denial of en banc rehearing for an important constitutional challenge to AEDPA.

It?s short and draws heavily on the dissents that have come before it, but it?s still well worth a read for those who follow this sort of thing.

Full post as published by Decision of the Day on April 16, 2008 (boomark / email).