Is AEDPA unconstitutional?
Six weeks after the Supreme Court’s latest decision chastising the Ninth Circuit for assuming too much power under federal habeas law to second-guess state courts’ criminal law decisions, a divided panel of that Circuit Court has raised the stakes. It has instructed lawyers to argue, at a hearing set for next Wednesday in San Francisco, whether the current habeas law – often referred to as AEDPA – is itself unconstitutional.
The issue is to be explored in the case of Irons v. Carey (Circuit docket 05-15275), a 21-year-old California murder case that the Circuit Court is hearing on an expedited, emergency basis involving inmates’ rights to parole. The state of California has appealed, saying it fears the imminent release of a dangerous murderer.
The bold gesture (first chronicled and linked by Howard Bashman on the How Appealing blog) in raising the broader constitutional issue is not surprising from the Ninth Circuit, and especially not surprising in that its most liberal member, Stephen Reinhardt, was involved. But so is one of that Court’s more conservative judges, John T. Noonan, Jr., adding weight to the inquiry. Those two joined in the order calling for argument on whether Marbury v. Madison (1803) and City of Boerne v. Flores (1997) mean that Congress violated separation-of-powers principles when it enacted the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). Another judge on the panel, Ferdinand P. Fernandez, did not join in the order.
Because the constitutionality of a federal law will be at stake, federal procedural law (28 USC 2403-a) requires that the U.S. attorney general be notified, and given a chance to enter the case to argue the constitutional issue. It is unclear whether the attorney general has yet been formally notified. Because of the profound importance of AEDPA to the entire federal habeas regime, the Department almost certainly will come to its defense.
The Supreme Court has shown impatience with the Ninth Circuit in its application of AEDPA. On March 22, in the latest sign of that reaction, the Court in Brown v. Payton (docket 03-1039) bluntly lectured the Circuit Court for exceeding “the limits on federal habeas review” imposed by Congress. The Brown decision relied in part on a March 2003 ruling by the Justices in Lockyer v. Andrade that also involved an admonition to the Ninth Circuit about how to read AEDPA.
The 1996 law was expressly intended by Congress to sharply curtail the right of state prison inmates, under federal habeas, to challenge their state convictions and sentences. A key section of AEDPA bars a federal court from granting any habeas writ on an issue that was raised in state court, unless the state court decision “was contrary to, or involved an unreasonable application, of clearly established federal law, as determined by the Supreme Court of the United States.” (That is 28 U.S.C. 2254-d-1.)
The Ninth Circuit’s new order, issued Wednesday, raises the question whether that section “unconstitutionally prescribes the sources of law that the Judicial Branch must use in exercising its jurisdiction and whether under the separation of powers doctrine this court should declinie to apply the AEDPA standards in this case.” By citing Marbury and City of Boerne on that issue, the Circuit Court was relying on two strong statements by the Supreme Court that Congress’ power to control how the courts carry out their judicial function is strictly limited by separation-of-powers principles.
Howard Bashman, in spreading the word Thursday about this order, called it ”a potentially very important habeas corpus development.” The Circuit Court itself signaled the public interest in the case by granting a film company permission to videotape next Wednesday’s hearing for later broadcast.
Here is the background on the case:
On March 9, 1984, Carl Merton Irons II was living in a rooming house near San Francisco. Another roomer was suspected of stealing items from the couple who owned the house and also lived there. They told Irons. He allegedly confronted the thief, shot him 12 times and stabbed him twice. The next day, he dumped the body in the Pacific Ocean. Irons was convicted in 1985 of second degree murder and was sentenced to 17 years to life. Five times, he has unsuccessfully sought parole from the California Board of Prison Terms.
After the Board turned down his fifth try, finding him unsuitable for parole, Irons filed a federal habeas plea. He contended that the Board lacked sufficient evidence to find him unsuitable, and focused specifically on the Board’s conclusion that the nature of his crime made him unsuitable. The Board said that the “first and foremost” factor against him was the murder, “carried out in an especially cruel and callous manner.” Despite saying that Irons should be commended for a number of gestures of self-improvement, that he had a good record in prison, and that the district attorney did not oppose parole, the Board denied it. State courts have upheld that denial.
Irons’ federal habeas argument was that, under Ninth Circuit precedent, the Board’s reliance on “an unchanging factor” – the circumstances of the original crime – could result in a due process violation if the Board, over a considerable period of time, used that factor to keep a model prisoner behind bars. Continued reliance on such an unchanging factor, according to the precedent, “runs contrary to the rehabilitative goals espoused by the prison system.” Thus, Irons argued, state courts in upholding the Board action violated his due process rights.
A federal magistrate judge, and a District Court judge, applied that precedent, and ruled that Irons was entitled to be released. The state of California, relying in part on the Supreme Court’s decision in Lockyer v. Andrade, contends in its appeal to the Ninth Circuit that the District Court failed to apply “the appropriate standard of deferential review” under AEDPA. The state obtained an emergency stay from the Ninth Circuit, and that Court on its own motion expedited the case, and set the case for argument next week.
There seems little doubt that, however the Circuit Court rules, the case is ultimately bound for the Supreme Court.
To read more than anyone could possibly want to know on the constitutional argument, see Liebman & Ryan, “Some Effectual Power”: The Quantity and Quality of Decisionmaking That Article III and the Supremacy Clause Demand of the Federal Courts, 98 Colum. L. Rev. 696 (1998) and my response, Scheidegger, Habeas Corpus, Relitigation, and the Legislative Power, 98 Colum. L. Rev. 888 (1998). See also Fallon, Meltzer & Shapiro, Hart and Wechsler’s The Federal Courts and the Federal System 1350 (5th ed. 2003).
IMHO, the Supreme Court has already decided this issue. Although they denied cert. on the constitutional question in Williams v. Taylor, 529 U.S. 362 (2000), petitioner got it in anyway under the banner of constitutional doubt, Justice Stevens’ opinion alluded to it, and the majority implicitly rejected it by interpreting the statute in the supposedly unconstitutional way anyway.
Comment by Kent Scheidegger — May 5, 2005 @ 7:43 pm
http://legalaffairs.org/howappealing/050505.html#002522
“Is AEDPA unconstitutional?” Online at “SCOTUSblog,” Lyle Denniston has this very interesting post providing additional details behind the order that I first posted online and mentioned here this morning….
Comment by How Appealing — May 5, 2005 @ 8:49 pm
Solomon Challenge & Other Appellate News
Although I plan on spending some serious time writing about Rumsfeld v. FAIR in the near future, I don’t really have the time right now. I did, however, want to point readers to Prof. Marci Hamilton’s lengthy commentary published today…
Comment by Law Dork — May 5, 2005 @ 9:05 pm
The fact that Noonan — a conservative Reagan appointee — joined the order might not be as surprising as it seems at first blush. In his book, Narrowing the Nations Power: The Supreme Court Sides with the Sates, Noonan spends considerable time attacking the Supreme Court’s decision in City of Boerne v. Flores, which he views as the hallmark of judicial overreaching into the province of the Congress. Now (I’m guessing), he seems to be saying, “Fine, if Boerne is going to exist, let’s carry out this awful precedent to its logical conclusion.” In a way, this is similar to what the original 9th Circuit panel did in Southwest Voter Registration Education Project v. Shelley, where the court tried to use Bush v. Gore to halt the California recall election (”Fun with Bush v. Gore: The 9th Circuit Moons the Supreme Court,” was Dahlia Lithwick’s well-worded headline). Time will tell whether Noonan is doing the same here. As he states in his book, “The real battle begun by Boerne was to continue. Were the new requirements for legislation ad hoc defenses set up by the Supreme Court to rebuff RFRA or would they be norms governing the future? Boerne raised this question without resolving it.” Looks like Noonan might take this opportunity to do just that.
Comment by BDG — May 6, 2005 @ 10:29 am
I wonder if Reinhardt got the idea from the proposals that the courts should be precluded from relying on international law in the wake of Kennedy’s opinion in the juvenile capital punishment case. The Supremes might not want to jump too quickly here.
Comment by NPV — May 6, 2005 @ 3:35 pm
The Supreme Court could certainly construe AEDPA to avoid the constitutional issue if it wished. All it would have to do is allow the federal courts to consider opinions of the lower courts as persausive, but not binding, authority regarding what prior U.S. Supreme Court cases implied. The lower courts could then cite the relevant U.S. Supreme Court decisions as the ultimate sources of their decisions. After all, there is no issue in criminal justice that the U.S. Supreme Court hasn’t touched upon sufficient to leave some implications.
Then, the fight is formally over how much one is willing to imply from the Supreme Court’s rulings, which is one of judicial interpretation, rather than over whose decisions one can consider.
Comment by ohwilleke — May 9, 2005 @ 12:55 pm
A decent (though short) review of oral arguments in this case can be found at Appellate Law & Policy, at: http://appellate.typepad.com/appellate/2005/05/oral_argument_i_1.html
Comment by Anonymous Clerk — May 11, 2005 @ 4:05 pm
2005 Porsche Cayenne Review
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2005 Ford Focus Review
For the 2005 model year, the Focus received a minor styling makeover, inside and out, giving it a slightly more subdued, mature look.
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2005 Buick Park Avenue Review
The four-door 2005 Buick Park Avenue sedan is long and elegant, and both models offer a generous range of standard amenities.
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2005 Chrysler Pacifica Review
The all-wheel-drive system works transparently and helps the Pacifica sail through corners like a sports sedan, rain or shine.
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Hummer H1
The Hummer H1
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Is 2254(d)(1) of AEDPA Unconstitutional?:
Judge Merritt thinks so, see his dissent today (starting at page 14), in an opinion that Judge Reinhardt can pop into what I assume will be his forthcoming opinion in
Comment by The Volokh Conspiracy — December 2, 2005 @ 1:10 am