Supreme Court Habeas Order Highlights Legal Ambiguity?

On Monday, the Supreme Court ordered the United States District Court for the Southern District of Georgia to review death row inmate Troy Davis’ conviction by “mak[ing] findings of fact as to whether evidence that could not have been obtained at the time of trial clearly establishes [his] innocence.” In re Davis, No. 08-1443, slip op. at 1 (U.S. Aug. 17, 2009). The order, as the New York Times reports, “set off a sharp debate between Justices John Paul Stevens and Antonin Scalia about Supreme Court procedure, the reach of a federal law meant to limit death row appeals and the proper treatment of claims of innocence.” The Times’ discussion provides a good summary of the legal squabble, but what I find most interesting is the subtext concerning the import of Teague v. Lane, 489 U.S. 288 (1989) with respect to the Antiterrorism and Effective Death Penalty Act (“AEDPA”). Indeed, while Justice Scalia’s most scathing objection to the Court’s order is that habeas relief would be categorically unavailable under 2254(d)(1), see Davis, slip op. at 2 (Scalia, J., dissenting), there is some--albeit largely academic--support for the exact opposite proposition.

In Teague, the Court crafted two exceptions to the then-exclusive rule against retroactive application of the law for habeas petitioners: a new legal rule should be applied retroactively for the petitioner's benefit only if (1) “it places ‘certain kinds of primary, private individual conduct beyond the power of the criminal law-making authority to proscribe’” or (2) “requires the observance of ‘those procedures that . . . are ‘implicit in the concept of ordered liberty.’” Teague, 489 U.S. at 311 (quoting Mackey v. United States, 401 U.S. 667, 692, 693 (1971)). In 1996, Congress passed AEDPA which, by its terms, bars habeas relief “with respect to any claim that was adjudicated on the merits unless the adjudication . . . resulted in a decision that was contrary to, or involved an unreasonable application of clearly established Federal law, as determined by the Supreme Court.” 28 U.S.C. § 2254(d)(1).

Some, however, including contributing editors of this blog, have opined that the exceptions from Teague would be imputed into AEDPA. See, e.g., Sharad Sushil Khandelwal, Note, The Path to Habeas Corpus Narrows: Interpreting 28 U.S.C. § 2254(d)(1), 96 Mich. L. Rev. 434, 440 n.45 (1997) (“[W]hen Congress used the phrase ‘clearly established,’ it meant to codify the entire Teague doctrine, including the exceptions.”). And many lower court cases addressing the issue hedge in a manner that implies tacit acceptance of Teague’s possible applicability to 2254(d)(1). See, e.g., Mungo v. Duncan, 393 F.3d 327, 334-35 (2d Cir. 2004) (“In any case, whether § 2254(d)(1) was intended, or out of prudence should be read, to adopt the Teague exceptions is a question we need not answer because we conclude that the . . . rule does not qualify as . . . coming within the exception to Teague.”).

But while relief for Davis could very well be permissible under at least one of the Teague exceptions given that the question is whether an “actually innocent” individual could be punished with death, any such discussion is conspicuously absent from both Justices’ opinions. Justice Scalia treats the issue as a simple application of a bright line statutory rule: “A state court cannot possibly have contravened, or even unreasonably applied ‘clearly established Federal law as determined by the Supreme Court of the United States’ by rejecting a type of claim that the Supreme Court has not once accepted as valid.” Davis, slip op. at 2 (Scalia, J., dissenting). Justice Stevens, on the other hand, takes the perspective that the lower court could find Davis entitled to relief based on clearly established principles that it is unconstitutional to execute an innocent individual or because any contrary interpretation would be unconstitutional. See id. (Stevens, J., concurring).

Notwithstanding the fact the opinions are cursory and only filed alongside an order, the lack of discussion of a plausible statutory basis for being able to grant relief strikes me as curious in light of the issues raised.

Constitutional Consequences of New Mexico's Ban on the Death Penalty?

CNN reports that Governor Bill Richardson of New Mexico signed a bill today "repealing the death penalty in his state." Part of the impetus to sign the bill related to personal conviction; as Governor Richardson explained to CNN:

Throughout my adult life, I have been a firm believer in the death penalty as a just punishment -- in very rare instances, and only for the most heinous crimes. I still believe that. . . .

Nevertheless, Governor Richardson said he ultimately signed the bill because he "do[es] not have confidence in the criminal justice system as it currently operates to be the final arbiter when it comes to who lives and who dies for their crimes," adding that he was bothered by the fact that minorities are "over-represented in the prison population and on death row." His action has sparked praise from the American Civil Liberties Union who said in an official statement:

Gov. Richardson’s decision today to sign the bill abolishing the death penalty in New Mexico is a historic step and a clear sign that the United States continues to make significant progress toward eradicating capital punishment once and for all. Gov. Richardson’s courageous and enlightened decision should send a powerful message to other states, governors and Americans about the need to take a hard look at our error-prone, discriminatory and bankrupting system of capital punishment. It is a system incapable of ensuring that innocent lives are not unjustly taken. It is a system plagued by racial, economic and geographic discrimination. And it is a system that police chiefs, criminologists and statistical experts around the country agree does not deter crime. Gov. Richardson deserves enormous credit for acting in the best interests of the people of his state and the people of this country.

I wonder if this might open up new avenues to the Supreme Court for death row inmates to argue against the constitutionality of the death penalty. The Court has previously held that the death penalty does not violate the Eighth Amendment's prohibition on "cruel and unusual punishment." Gregg v. Georgia, 428 U.S. 153 (1976). As with all of its Eighth Amendment jurisprudence, see Trop v. Dulles, 356 U.S. 86, 101 (1958) ("The [Eighth] Amendment must draw its meaning from the evolving standards of decency that mark the progress of a maturing society."), its decision was predicated on "evolving standards of decency." Gregg, 428 U.S. at 173. Recently, in Kennedy v. Louisiana, 128 S. Ct. 2641 (2008), the Court held that the imposition of the death penalty for the rape of a child was unconstitutional--at least where the life of the victim was not taken--partly because only five states had laws punishing such conduct on the books. Those five states were not enough to show "evidence of a national consensus with respect to the [imposition of the] death penalty for child rapists." Id. at 2653. Following this logic with respect to future challenges, if other states follow New Mexico's lead in banning capital punishment altogether--which seems possible given that roughly 14 other states have now banned the death penalty--the Court may choose to revisit its conclusion that the death penalty comports with the Eighth Amendment.

It is unclear, of course, how many state pronouncements against the death penalty would be necessary to establish that the penalty offends our "evolving standards of decency." Moreover, one has to wonder how the possibility of habeas relief would, if at all, influence the Court’s decision to overrule its precedent on capital punishment. Although collateral attacks on state court judgments are, as Craig noted, difficult to successfully lodge, a pronouncement that the Eighth Amendment prohibited the death penalty would be made retroactive to all pending death penalty prisoners notwithstanding Teague v. Lane, 489 U.S. 288 (1989), which generally requires habeas petitioners to depend on the law existing at the time their decision went final. See Penry v. Lynaugh, 492 U.S. 302, 330 (1989) (noting that one of two exceptions to Teague retroactivity “should be understood to cover . . . rules prohibiting a certain category of punishment for a class of defendants. . . ."). Decisions “on the merits,” and thus within the scope of 28 U.S.C. § 2254(d)(1) would likely also be subject to collateral attack assuming (as I do) that the applicable Teague exception would be imputed to cover the statute.

The Court should not refrain from holding the death penalty unconstitutional simply because it could upset many state court judgments, but one nevertheless has to wonder if the practical ramifications of such a decision would somehow influence the Court's decision to reconsider its precedent.

"Petition Denied"

The title says it all: these are very familiar words to the federal habeas petitioner attacking his or her state court conviction. Habeas is a maze of sorts with many dead ends invariably leading back to the jail cell that gave rise to the petition.

I'm not going to bore you with a long-winded discussion of how habeas works. But, when I was perusing the internet the other day, I stumbled across this boiler plate form from the Eastern District of New York--presumably to be "filled in" and filed as a memorandum and order to dismiss a habeas petitioner's case. It's not really surprising that something like this exists given that the pleading patterns in many habeas cases are similar. Indeed, it makes good sense to handle simple, routine cases with non-precedential, boiler plate opinions--whether made by macro or some fill-in-the-blanks form. And I know these types of forms are used in other contexts, too.

On the other hand, it kind of makes me doubt the system as a whole. There's enough judicial access for petitioners so as to warrant this method for efficiency reasons, but the fact that the judiciary is able to readily (and successfully) resort to boiler plate demonstrates how difficult recovery really is. So the floodgates for habeas are open just enough that they're burdening the federal judiciary, but not necessarily enough to ensure that everyone with a valid claim can recover.

What solution would I propose? I don't know that there is one and, moreover, I don't think we need one. The current system--albeit flawed in some respects--may just strike the appropriate balance between judicial efficiency concerns, and our continued reverence for liberty.