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Supreme Court Creates New Exception to Habeas Limitations for Ford Claims:
Today's death penalty decision in Panetti v. Quarterman created a new exception to AEDPA's ban on federal court jurisdiction over "second or successive" habeas petitions. I think Justice Kennedy is exactly right that Congress should have written such an exception; as a matter of policy, I think the Court's new rule makes a lot of sense. But Congress didn't actually write such an exception, and I thinik the Court's attempt to create the new exception by judicial construction is pretty unpersuasive.

  First, a bit of background. The Eighth Amendment prohibits capital punishment if at the time of the planned execution the subject is insane. This means that lawyers for the subject may need to bring claims about the person's sanity soon before the execution is planned; the subject may have turned insane just weeks or months before the execution, long after the subject's habeas claims have been adjudicated. This creates a bit of a puzzle. On one hand, Congress is very interested in giving inmates just one shot at federal habeas relief. On the other hand, claims of insanity can arise at any time, and state courts may be uninterested in looking closely at those claims. The seemingly obvious solution is to create an exception to the usual rule (that inmates get only one shot at federal habeas relief) just to cover these sorts of claims.

  The problem is that Congress didn't create such an exception. Here's what Congress said in 28 U.S.C. 2244 about federal court review of claims in habeas petitions brought the second time around:
(1) A claim presented in a second or successive habeas corpus application . . . that was presented in a prior application shall be dismissed.
(2) A claim presented in a second or successive habeas corpus application under section 2254 that was not presented in a prior application shall be dismissed unless—
(A) the applicant shows that the claim relies on a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable; or
(B)(i) the factual predicate for the claim could not have been discovered previously through the exercise of due diligence; and
(ii) the facts underlying the claim, if proven and viewed in light of the evidence as a whole, would be sufficient to establish by clear and convincing evidence that, but for constitutional error, no reasonable factfinder would have found the applicant guilty of the underlying offense.
The only exception to the rule that claims in second or successive petitions must be dismissed is really narrow; it pretty much just covers new retroactive rules and actual innocence claims. There is no exception for insanity claims (which are known in the biz as Ford claims, after Ford v. Wainright).

  That brings us to the Panetti case handed down today. Panetti filed a claim for federal habeas relief that was litigated in the federal courts from 2001 to 2003. Although Panetti had shown mental illness throughout his case, and his competency was a major issue at trial, he did not raise a Ford claim in his first petition. In 2004, Panetti then filed a second federal habeas petition, this time raising the Ford claim. The question is, did the ban on claims in "second or successive" apply? The state thought it did: It argued that the law was actually really clear here, and that this was a second petition that didn't fall within any exception.

  The Supreme Court disagreed 5-4. Writing for the majority, Justice Kennedy recognized that the state's argument "has some force." But he concluded that it was flawed because of "[t]he results it would produce" when paired with an earlier decision, Stewart v. Martinez-Villareal. In Stewart, the Court had held that if an inmate brings a Ford claim in his first petition that is dismissed because it is not ripe, the inmate can bring the claim later when it becomes ripe; according to the Stewart case, refiling the dismissed claim is really just a continuation of the earlier claim dismissed on ripeness grounds.

  In today's decision, the Court looked at the statute and the Stewart decision and concluded it would be really weird if a petitioner could bring the claim again if he had brought it prematurely before (the holding of Stewart) but not if he hadn't brought it at all. That couldn't be right, Justice Kennedy reasoned: "This counterintuitive approach would add to the burden imposed on the courts, applicants, and the States, with no clear advantage to any."

  But how to get around the pretty clear statutory language prohibiting such petitions? The majority starts by saying that the phrase "second or successive" is "not self-defining." According to the Court, the phrase takes "full meaning" from the Court's caselaw. Among that caselaw is Martinez, which, like other habeas cases, discussed the public policy implications of its holding. Therefore the court can be influenced by the public policy implications of the rule at issue in this case. And when you look at those implications in light of the Stewart precedent, the policy arguments all go one way. When paired with Stewart, Congress's rule would require inmates to file unripe claims just to make sure they aren't stuck with the ban on second or successive petitions. There's really no good argument to be made for that rule; it would require arguments "to be raised as a mere formality, to the benefit of no party." Congress could not have intended such a result.

  Thus the Court announces a new rule: "The statutory bar on 'second or successive' applications does not apply to a Ford claim brought in an application filed when the claim is first ripe." As the court writes elsewhere, "We conclude . . . that Congress did not intend the provisions of AEDPA addressing 'second or successive' petitions to govern in the unusual posture presented here: a 2254 application raising a Ford-based incompetency claim failed as soon as that claim is ripe."

  The problem, as I see it, is that looking at the public policy implications of ambiguous statutory text is pretty different from using policy arguments to ignore text that is really quite plain. If there was a constitutional argument to be made, the Court should have made it. But Congress didn't write the exception it should have written, and absent a constitutional claim it wasn't the Court's job to write it for them.

  UPDATE: On a closer reading of Stewart, I do think the issue here is closer than I thought at first. Stewart is a very brief Rehnquist opinion that has pretty opaque reasoning, but that isn't closely focused on the text. I think that does provide some authority for taking a "common law" approach to the text here (that is, not paying much attention to it), making this decision less objectionable than I had first believed.
followup:
Accepting your argument (and the dissent's) as correct, how would that not amount to a suspension of the writ?
6.28.2007 6:24pm
OrinKerr:
Followup,

What is the constitutional requirement of inferior federal court review of state sentences?
6.28.2007 6:32pm
SR (mail):
I think you might be exaggerating the clarity of "second or successive" as well as the uniqueness of the rule in Panetti (although I have not yet read the opinion). For example, in most circuits, if the first habeas petition was dismissed for failure to exhaust, then a subsequent petition is not "second or successive" for sec. 2244 purposes. Also, under Castro, a filing that is not captioned as but treated by the court as a habeas petition (or 2255 motion) will not trigger 2244's bar on second or successive petitions. Nor are habeas petitions challenging parole denials considered second or successive under 2244 even if the prisoner had previously filed a petition challenging his conviction or sentence.

The term "second or successive" as used in 2244 is a term of art that is nowhere defined in the statute, but rather gets its content from (mostly pre-AEDPA) Supreme Court decisions. So I don't think it is unusual for the Court to interpret the statute to find that a petition brought when a claim first becomes ripe is not second or successive.
6.28.2007 6:43pm
William Eric Wolff (mail):
The Eighth Amendment prohibits capital punishment if at the time of the planned execution the subject is insane.

I'm confused. Perhaps, indeed almost certainly, because I don't know enough...

It sounds like the Court is saying the Congress would not have intended to make the Eighth Amendment, at least in some circumstances, unenforceable. If the Congress intended to make the Eighth Amendment unenforceable, wouldn't that make the legislation unconstitutional?
6.28.2007 6:43pm
Guest3000:
This seems to go to broader questions about what you think the role of the Court should be in enforcing the Constitution absent Congressional action (or in the face of Congressional roadblocks). In which case this will look an awful lot like the discussion you and Ilya were having regarding Ilya's point about Bivens -- the Court is essentially creating a remedy for a (prospective) Constitutional violation that would otherwise be irremediable.
6.28.2007 6:48pm
Rich B. (mail):

The problem, as I see it, is that looking at the public policy implications of ambiguous statutory text is pretty different from using policy arguments to ignore text that is really quite plain.



If your first marriage was annulled the next day because you were both drunk, is the next woman you marry your "second wife"? Reasonable minds can differ on what "second" means.

As always, "plain meaning" can only take you so far, and it is usually not as far as most textualists want. I picture this case like a statute that bans "trying to vote twice in an election." On election day, you go to your polling place at 6 a.m., but the doors are locked, so you go home and come back a couple of hours later. When you walk in, you are arrested for "trying to vote twice," and at trial you admit that you tried to vote at 6 a.m., failed, and then tried to vote again at 8 a.m. The language is "plain" that you violated the statute.

But should the first time really "count"? Most would say 'no', because it was not yet time to vote at 6 a.m. So, when you came back at 8 a.m., that was really your first attempt.

Same thing here. If you could not possibly bring the habeas petition before because it was unripe, then the previous petition was not the "first," and as a result the next one is not the "second or successive."
6.28.2007 6:50pm
OrinKerr:
Rich B,

Your hypothetical about marriage is pretty close to Stewart, the 1998 case, as it uses an aborted try (the annulment a day later) in lieu of the dismissal.

But your marriage hypothetical is really quite far from this case. The better analogy to this case would be to imagine you marry Jane. You divorce Jane two years later. The next year, you marry Sarah. The question is, was Sarah the "second" person you married, or was Sarah the "first" person you married? I would say Sarah is the second person you married. I'm curious, do you disagree with me?
6.28.2007 7:04pm
OrinKerr:
Rich B,

Oh, and I should add that your example about trying to vote twice in an election seems bizarre. If there is a statute that prohibits "trying to vote twice," there are two possible textual readings: "trying to vote again after already having voted" or "trying to vote after already having previously tried to vote." You seem to assume that a textualist would be compelled to adopt the latter reading. Why?
6.28.2007 7:12pm
BruceM (mail) (www):
I think a better way of deciding this case would have been to interpret section 2244(b)(1)(B)(ii). It should mean if you have a newly discovered fact (in this case the insanity of the defendant), "... but for constitutional error, no reasonable factfinder would have found the applicant guilty of the underlying offense." It's inartfully worded, but if the defendant can show insanity by clear and convincing evidence (as is required), but for the Ford error which then exists, the factfinder would not have (been able to) find the applicant guilty of the death penalty.

The "guilty but not guilty of the death penalty" principle has long been approved by the SCOTUS. You can be actually innocent of the death penalty but guilty of the underlying crime.

I think Congress actually intended that if a fact arose later on which was not reasonably discoverable earlier, which would not attack the conviction but only the sentence (i.e. death), a subsequent writ is permitted if the newly discovered fact can be show with clear and convincing evidence and is not unreasonable in light of all the evidence as a whole. Why would congress not mean for it to be applied this way? It's very rare for a newly discovered fact to be used by a defendant not to challenge a conviction, but only a sentence. In fact, that's really only applicable in the death penalty arena. So Congress, in it's shortminded stupidity, simply didn't think about this. But that's not to say it wasn't intended.

Yeah I know we hate to read things in to a statute when the wording doesn't seem ambiguous, but life is tough.
6.28.2007 7:29pm
George Weiss (mail):
why did panetti concede that his claim didnt fall into

exception (B)i-something that couldn't have been detected before by due diligence

if its true that the factual basis for his ford claims came AFTER the time of the first habeus but BEFORE the time of the second habeus-then wouldnt that be what B(i) is talking about?

i think the answer is that in reality-the factual basis was there..and his lawyer screwed up and forgot to put that in his first habeus claim-(maybe thinking his conviction would be overturned in any case)


as a matter of policy-wouldn't B(i) be the answer to the conflicts here-which would allow genuine cases of suddon ford claims to proceed but suspicious ones-like panetti's not to?
6.28.2007 7:35pm
George Weiss (mail):
bruce-why not B(i)?
6.28.2007 7:37pm
Dilan Esper (mail) (www):
Another way around the problem would have been to permit the Ford petitioner to file an original petition with the Supreme Court. In the first case that the Court heard upholding the constitutionality of AEDPA (I forget the name of it now), the Court held that there was no constitutional issue with AEDPA because the Supreme Court could still hear petitions as part of its original jurisdiction.

I suppose the practical answer is that the Supreme Court doesn't want to hear all the Ford claims itself and would rather the lower courts hear them (although the Court could appont masters as it does in other original jurisdiction cases). But my proposal has the merit of not disregarding the language of AEDPA while still allowing the challenges to go forward.
6.28.2007 7:37pm
nunzio:
In light of Nelson v Campbell and Hill v McDough, why wouldn't a 42 USC 1983 suit for injunctive relief be the better vehicle to challenge insanity that arises after conviction?

I know it's not really a method-of-execution claim, but since it's not really challenging the underlying conviction or sentence, it's not really a habeas claim either.
6.28.2007 7:44pm
Rich B. (mail):

If there is a statute that prohibits "trying to vote twice," there are two possible textual readings: "trying to vote again after already having voted" or "trying to vote after already having previously tried to vote."


Yes, and in the case at issue, there are two possible textual readings of "Second or Successive Habeas Corpus Application": Any application filed after already having filed an application, or any application filed after already filing an application that could have raised the issue in question.

What I do not see is why "really quite plain" that a "previous application" should include even those applications where it was ILLEGAL (due to ripeness concerns) to raise the issue.

Let's put it this way: Is there a clear difference between a "Second Application" and an "Amended First Application"? If you were to allow an amended first application after the fact, wouldn't it be easiest to allow in situations where the amendment raised an issue that couldn't be raised previously?

The Opinion is merely stating that what one person sees as "Successive", the other sees as merely part of the "First".
6.28.2007 8:13pm
OrinKerr:
Rich B. writes:
[I]n the case at issue, there are two possible textual readings of "Second or Successive Habeas Corpus Application": Any application filed after already having filed an application, or any application filed after already filing an application that could have raised the issue in question.
Rich, I appreciate your willingness to stick to your guns, but I just don't get this. Your argument now hinges on the theory that it would have been illegal (or, as you put it, ILLEGAL) to bring a Ford claim the first time. But it wouldn't have been illegal: the Supreme Court in Stewart specifically allowed this. All nine Justices agreed it would have been perfectly legal.
6.28.2007 8:28pm
Dave N (mail):
Rich B.

In habeas lingo, a "successive" petition arises only when there has been an adjudication on the merits or a prior dismissal of a petition with prejudice.

Habeas corpus has long held that a new petition after the dismissal of a prior petition without prejudice (usually for exhaustion) is neither "second" nor "successive."

I see this petition as the majority's desire to save Congress from an unintended consequence of AEDPA--non-ripe Ford claims. Having already held in Martinez-Villareal that a non-ripe but presented Ford claim could be considered, it seems like a relatively minor step to reach the conclusion the Court reached today.
6.28.2007 8:32pm
BruceM (mail) (www):
B(i) and B(ii) go together, you need both. I'm saying it fits into B(i) (I don't think that's an issue, everyone would admit that) but the problem is meeting B(i) isn't enough, you need to also meet B(ii). I'm giving a reason why B(ii) should apply, even though the text of B(ii) sure sounds like it doesn't. Here's what the section B says:

B(i) the factual predicate for the claim could not have been discovered previously through the exercise of due diligence; and
(ii) the facts underlying the claim, if proven and viewed in light of the evidence as a whole, would be sufficient to establish by clear and convincing evidence that, but for constitutional error, no reasonable factfinder would have found the applicant guilty of the underlying offense.

The newfound insanity clearly applies for B(i). But it gets convoluted to meet B(ii). The newfound insanity would not have prevented a reasonable factfinder from finding the applicant guilty of the underlying offense. Insanity after sentence is ipso facto not insanity that occurred at the time the crime was committed so as to absolve criminal responsibility, plus the Ford standard is different from the not guilty by reason of insanity standard. So meeting B(i) does nothing, you also have to meet B(ii). Above I explained why I believe these circumstances do, or were intended by Congress, to meet B(ii) even though it is inartfully drafted and seemingly too narrow to encompass subsequent development of Ford claims.
6.28.2007 8:39pm
MJG:
Orin,

Your discussion doesn't quite give the appropriate lay of the land. You don't explicitly say that the Panetti holding is inapposite to previous cases (the court announces a "new rule"), but I disagree with that assertion. Your larger issue seems to be just that teh AEDPA should be interpreted in a much more restrictive fashion.

Regarding the law Kennedy relies on for the holding, Stewart v. Martinez-Villareal explicitly refers to "second or successive" as a "term of art" that does not literally cover numerically second or successive petitions. The Court said that the claim at issue was the "second time the [habeas petitioner] had asked the federal courts to provide relief on his Ford claim . . . this does not mean that there were two separate applications, the second of which was necessarily subject to §2244(b)." The Court there stated that holding otherwise, just as in Panetti, would have been "perverse."

Thus it's not an issue of "pairing" Panetti with an inapposite decision, it's a matter of taking the holding in that case and applying it here. And if your definition of "second or successive" applied then Martinez-Villareal should have had his petition denied as well, because that claim was numerically second or successive as well.

You are of course right that there is no Felker v. Turpin problem here, but that doesn't mean that it's a matter of "calling the balls and strikes" with regard to the AEDPA and that absent some large constitutional problem the Court has blundered. Panetti is a fairly rare and unique situation, one I do not think Congress had in mind when it enacted the AEDPA, and Panetti is a case resolved by interpreting an ambiguous term ("second or successive") as what it is, a "term of art."

And if your problem is that you simply feel that Martinez-Villareal was wrongly decided and all such cases like it and Panetti are unjustified excursions into public policy-making, it at least bears observing that the author of Stewart v. M-V was that eternal champion of the habeas petitioner, William Rehnquist.
6.28.2007 8:43pm
JunkYardLawDog (mail):
Maybe the real problem is the Court's initial ruling that the bar against cruel and unusual punishment in the constitution has ANYTHING AT ALL to do with the convicted killer's mental capacities as opposed to the truth which is it was always only intended to be a bar to certain types of barbaric PHYSICAL methods of ending the life of a killer sentenced to death. It has absolutely NOTHING to do with a killer's mental state at the time of the crime or thereafter. The problem was created by the initial bad law decision from the court and could be easily solved by the court reversing its unwise and certainly unfounded opinions regarding the execution of the retarded or those under 18.

Says the "Dog"
6.28.2007 8:46pm
BruceM (mail) (www):
nunzio: no it's a habeas claim. You can file a habeas claim on being "actually innocent of the death penalty" (but it gets complicated). See Sawyer v. Whitley, 505 U.S. 333 (1992). You can't file a 1983 action to challenge "the fact or duration of confinement."
6.28.2007 8:49pm
George Weiss (mail):
bruce-my bad i thought all you needed was either B(i) or B(ii)....

you need both..i see what you mean
6.28.2007 9:16pm
Bill Dyer (mail) (www):
Spectacular discussion of the AEDPA holdings, Prof. Kerr! Congrats on producing such a thoughtful analysis in such short order.

I have a much less polished, much more snarky critique of the "merits" holding on my own blog (with a too-long title):

SCOTUS, per Kennedy: Panetti's not insane, knows he's a murderer, and knows that that's why Texas plans to kill him. But Texas can't, because Panneti might be too psychotic to really quite grok capital punishment.
6.28.2007 9:51pm
BruceM (mail) (www):
This begs a bigger question: Is the AEDPA the worst, most unjust, law ever passed in the history of the USA in the realm of criminal procedure, or is there something actually worse that I don't know about?
6.28.2007 10:00pm
George Weiss (mail):
on the AEDPA-bruce your right its probably the toughexst crim procedure law that has ever been passed...(that does not mean its the worst though

we are starting to realize the only way the death penalty is going to be effective is if it is relatively quick and certain...the aedpa helps that...
6.28.2007 10:12pm
OrinKerr:
Thanks, MJG, that's helpful. This isn't my area, and I hadn't read Stewart until just now.

Upon reading it, I agree that Stewart is sufficiently mysterious to give Panetti at least a potential case here. The Stewart court seemed to be more interested in policy arguments than text, so perhaps that style of reasoning should apply here as well. At the same time, I think it's still a bit of an uphill battle: the policy interest in Stewart was making sure that the inmate had a chance to litigate the claims he filed in his first petition; that interest isn't implicated here.

But I think you're right to say that the flavor of Panetti resembles the flavor of Stewart: both were obviously result-oriented to reach a sensible result, which at least raises the possible argument that Justices have given themselves a relatively free hand to reach sensible results in this context.
6.28.2007 10:32pm
David M. Nieporent (www):
This begs a bigger question: Is the AEDPA the worst, most unjust, law ever passed in the history of the USA in the realm of criminal procedure
I guess that depends whether you think that the constitution established federal courts for the purpose of retrying cases decided in state courts. (And then retrying them again, and again, and again...)
6.28.2007 11:15pm
Fat Man (mail):
The Eighth Amendment prohibits capital punishment if at the time of the planned execution the subject is insane.



Rubbish. The Eighth Amendment says absolutely nothing about the subject. SCOTUS has waived its collective hand in the direction of the Eight Amendment, but they are just making it up:

POLONIUS: My lord, the queen would speak with you, and presently.

HAMLET: Do you see yonder cloud that's almost in shape of a camel?

P: By the mass, and 'tis like a camel, indeed.

H: Methinks it is like a weasel.

P: It is backed like a weasel.

H: Or like a whale?

P: Very like a whale.

H: Then I will come to my mother by and by.
6.29.2007 1:03am
BruceM (mail) (www):
"we are starting to realize the only way the death penalty is going to be effective is if it is relatively quick and certain...the aedpa helps that...."

George: We are? Since when are we starting to collectively realize that, and since when has there been any data which support the proposition that the "Antiterrorism and Effective Death Penalty Act" has made the death penalty more "effective"? It certainly has not made terrorism less effective. And if we're not going to charge terrorists and bring to trial in regular courts or give them any constitutional rights, the AEDPA can't possibly have ANY effect on terrorism, since all it really does is limit a defendant's ability to bring postconviction claims of constitutional rights in Article III courts.

The death penalty's purpose is not to be an effective crime control measure (history shows it never has been); but rather, it's there to make us feel good, provide catharsis and revenge, and make the victim's family quit bugging the prosecutors about the defendant maybe one day getting out.

I'm not saying those are bad reasons. In fact, the only thing that prevents me from supporting the death penalty is my lack of faith in the justice system's rate of accuracy. If we could be 100% certain that people convicted were guilty, then I would fully support the death penalty. Right now, the chance of executing an innocent person are simply too great.
6.29.2007 2:20am
Kovarsky (mail):
Orin, I haven't been on for awhile, but you are correct in observing that there is indeed a fairly rich history of "abuse of the writ" interpretation that informs this discussion, and it does lend credence to Justice Kennedy's functional approach to 2244. It's also worth adding that if you read the transcripts and opinions from other 2244 cases like Day v. McDonough and Lawrence v. Florida, both ideological wings of the Court engage in a fairly searching functional 2244 inquiry (Day and Lawrence are limitations cases, but they're still 2244).

Also, one gets sick of seeing comments like this, from Mr. Nieporent:

I guess that depends whether you think that the constitution established federal courts for the purpose of retrying cases decided in state courts. (And then retrying them again, and again, and again...)

Well, it doesn't depend on that at all. Who on earth thinks the "purpose" of federal courts is to retry cases from state courts. I think what he means to say is whether Congress should authorize state courts to "relitigate" issues. That's an interesting hypothetical question, since it's not what Congress has done, which is, under 2254(d)(1) and (d)(2) authorize federal habeas relief to issue only in instances where the state decision was either legally or factually unreasonable. Nobody - not one person - familiar with this area of the law, believes that AEDPA authorizes de novo review of fully and fairly adjudicated state claims.
6.29.2007 3:09am
Kovarsky (mail):
I believe I misunderstood Mr. Nieporent's comment, which instead seems to make the point that AEDPA as it is currently written is the only thing that could prevent infniite relitigation of claims adjudicated in state court. I misunderstood the comment because it is perhaps even more absurd what I took his meaning to be the first time. AEDPA is rife with well-documented drafting deficiencies, and that is why it is an awful statute. The idea that it is somehow clear and the problem with it reduces to a problem about what it does to state claim issue preclusion is a farce, to put it generously.
6.29.2007 3:22am
BruceM (mail) (www):
Kovarsky: before AEDPA the world didn't fall apart because there were a billion appeals of the same state conviction. Plus after AEDPA, a habeas that a prisoner might hold off on and wait until it becomes more developed at a later date will be filed because of the idiotic one-year statute of limitations. So now the courts are flooded with 2254 petitions because the alternative is letting the statute run and being barred.
6.29.2007 5:05am
Public_Defender (mail):
In law school, my civ pro professor compared procedural bars to dams on rivers--the water usually just finds a different path.

The reality is that courts are sympathetic when you just want one bite at the apple (one ruling on the merits) on a timely presented claim. Courts generally accept procedural bars, but only when the litigant has a shot at making the argument.

This works the other way too. Even if you present a strong claim using a technically correct procedure, courts will look to deny it if they think you are somehow screwing with the system.

In this case, the petitioner just wants one shot to get a federal ruling on a federal constitutional claim. Most courts are going to interpret whatever law they have as broadly as they can to allow it.
6.29.2007 8:02am
Public_Defender (mail):
SCOTUS, per Kennedy: Panetti's not insane, knows he's a murderer, and knows that that's why Texas plans to kill him. But Texas can't, because Panneti might be too psychotic to really quite grok capital punishment.

It's interesting to see how peeved some people get when they might not get to kill a schizophrenic. Now I see where the support for torture comes from.

If killing a documented schizophrenic vindicates your sense of morality, you are morally depraved. Panetti's schizophrenia at least partially explains his depraved desire to kill. What explains yours?
6.29.2007 8:21am
BruceM (mail) (www):
Public_D: I think courts actually, nowadays (this is a recent phenomenon) get off on denying people their FIRST bite at the apple, no matter how strong or well-presented the claim is. This is especially true for criminal defendants, and hardly ever true for a corporate party. They'll dump the responsibility for justice on a higher court on, even worse, on the legislature to change the law.
6.29.2007 10:29am
MJG:
Orin, I appreciate the nod. Thomas articulated many of the same concerns about the majority's approach to 2244 in Stewart v. M-V as he did in Panetti, and I think there they carried more force because that case wasn't yet on the books. There he got one vote for his position, here got three more with Roberts and Alito joining the court.

I will say that if one wants to argue that Kennedy leapfrogged any procedural hurdles to get to the merits, I think his 2254 analysis is weaker than his 2244 stuff. He goes quickly but he has to argue that Powell's concurrence in Ford qualifies as "clearly established" federal law, even though Powell in his concurrence actually states his very test about four different ways if I remember correctly. Nor are those opinions very "clear."

In any event, the Roberts/Thomas bloc lost this battle in the Brewer and Abdul cases earlier, as the liberals + Kennedy seem to feel that Roberts's more restrictive reading of what qualifies as "clearly established" federal law would freeze too much of substantive federal criminal law. This is possibly good for habeas petitioners (though it's tough to say), but certainly good for criminal/crim pro law professors!

But Orin, I do agree that the Justices seem to be taking a somewhat inconsistent approach to the AEDPA. Sometimes their approach is exegetical, other times much more policy oriented. On the one hand I do think that the AEDPA may simply be an inadequate statute to govern the various forms federal habeas claims take, and that with so many and the fact-specific nature of many of them, that the Justices need to wave their judicial wands a bit more. This is what Rehnquist did in Stewart. On the other hand, one could argue that it is just the Justices clinging to pre-AEDPA notions of judicial power over the writ. Scalia made this point in his Stewart dissent:


It seems to me much further removed from the "perverse" to deny second-time collateral federal review than it is to treat state-court proceedings as nothing more than a procedural prelude to federal lower-court review of state supreme-court determinations. The latter was the regime that our habeas jurisprudence established and that AEDPA intentionally revised–to require extraordinary showings before a state prisoner can take a second trip around the extended district-court-to-Supreme-Court federal track. It is wrong for us to reshape that revision on the very lathe of judge-made habeas jurisprudence it was designed to repair. . . .

As hard as it may be for this Court to swallow, in yesterday’s enactment of AEDPA Congress curbed our prodigality with the Great Writ. The words that Landis applied to the Clayton Act fit very nicely the statute that emerges from the Court’s decision in the present case: “The mutilated [AEDPA] bears ample testimony to the ‘day before yesterday’ that judges insist is today.”


Who is to say.
6.29.2007 10:56am
Kovarsky (mail):
BruceM,

Kovarsky: before AEDPA the world didn't fall apart because there were a billion appeals of the same state conviction. Plus after AEDPA, a habeas that a prisoner might hold off on and wait until it becomes more developed at a later date will be filed because of the idiotic one-year statute of limitations. So now the courts are flooded with 2254 petitions because the alternative is letting the statute run and being barred.

BruceM, agreed 100%. I think back in the day there was some truth to the idea that the capital defense bar had a large fraction of brinksmen who filed 11th hour everythings to frivolously delay executions. But now that's just a boogeyman, and the pendulum has swung way, way too far in the other direction, and these procedural defenses are being asserted and upheld to bar far too many meritorious claims. And because so much time is spent litigating the procedural defenses themselves, it doesn't save the courts any time.

Believe me, I don't need convincing.
6.29.2007 11:02am
Kovarsky (mail):
MJG,

A couple of things:

On the other hand, one could argue that it is just the Justices clinging to pre-AEDPA notions of judicial power over the writ.

Fair enough, except there's certainly a methodological precedent for the Court retaining more common-law authority under the habeas statute than there are under others. I can't think of too many other statutes that are such comprehensive attempts at codification of the common law. The 2244(b) successive petition bar is abuse of the writ reconstituted as a jurisdictional bar, the exhaustion rule has been statutory since 1948, but was a creature of common law before that and has always been interpreted that way, the rule for new evidentiary hearings derives plainly from the procedural default standard, and so on and so forth. To the extent that you believe in the interpretive canon that when legislatures incorporate elements of the common law, that those elements do not necessarily remain frozen the same way organic elements might (and there are lots of people that subscribe to this idea), AEDPA is a little different.

I will say that if one wants to argue that Kennedy leapfrogged any procedural hurdles to get to the merits, I think his 2254 analysis is weaker than his 2244 stuff. He goes quickly but he has to argue that Powell's concurrence in Ford qualifies as "clearly established" federal law, even though Powell in his concurrence actually states his very test about four different ways if I remember correctly. Nor are those opinions very "clear."

I would also argue that these opinions are good for federalists. Setting the Penry issues from Brewer and Cole aside for a moment, you're talking about Ford claims, whereby certain standards and procedures were delegated to the states. Obviously its impossible to delegate anything to the states if thereby no elements of the delegated material can be "clearly established." This is a huge problem in Atkins litigation too (Texas the litigant, for example, takes the position that Atkins clearly establishes nothing because it delegates some of the precise definitional work to the states). If the Supremes are going to go this way when 2254 cases come up (and refuse to find anything clearly established in these psychiatric cases), then they're never going to delegate anything meaningful to the states because, by doing so, that delegation will vitiate the rights of fairly deserving claimants on collateral relief.

You just have to bracket the Penry litigation. I don't think it's a particularly good bellweather for the Court's 2254 jurisprudence. That litigation has been a plain-old staredown for years now. I continue to insist, however, that what was not "clear" was what was "clear" itself, not the original holding. Of course many of those cases are unclear about what was clear, but I don't think a 2254 finding of clearly established law in light of that lack of clarity says much about where the court is going with the provision.
6.29.2007 11:19am
Norman Yarvin (www):
Where did anyone get the idea that insanity at the time of execution was the important thing? It's only insanity during the crime itself that has a bearing on whether the crime was just a freak of a diseased mind (which someday, with improved medicine, might even be curable) or an intentional act. If someone commits a horrible murder while sane, then later becomes crazy, then we are dealing with someone who, even if cured, would be cured into being a horrible killer.
6.29.2007 3:03pm
Dave N (mail):
Norman,

The idea is that it is cruel and unusual to execute someone if they do not know why they are being executed. Thus, before a person is executed he has to understand both that the State is going to kill him, and why.
6.29.2007 3:27pm
MJG:
This only relates to the punishment. Most of these arise out of the sentencing phase, after the person has already been found guilty. And, as Dave N said, it only matters regarding whether they get the death penalty or not.
6.29.2007 5:05pm
Bill Dyer (mail) (www):
Public_Defender wrote:
If killing a documented schizophrenic vindicates your sense of morality, you are morally depraved. Panetti's schizophrenia at least partially explains his depraved desire to kill. What explains yours?

This isn't about morality (although I think morality here is generally parallel). It's about justice.

We're not talking about the State of Texas executing just any old "documented schizophrenic." Nor are we talking about the State of Texas executing someone because they're a "documented schizophrenic."

We're talking about the State of Texas executing a documented schizophrenic who is a convicted double-murderer — one who was found sane, found capable of participating meaningfully in his defense, and found competent to waive counsel, and none of those findings are in question any more — and whom the jury also found guilty beyond a reasonable doubt of the aggravating factors that justify the ultimate penalty.

I don't know the percentages, but it would amaze me if a very high percentage of the prisoners on death row, whether in Texas or elsewhere, aren't psychotic. Many of them are very psychotic indeed. You may want a different legal system, one in which everyone who's merely psychotic is excused from legal culpability, but that's not the system we live in — that's not the test for whether someone is exempt from punishment for their crimes.

But now Justice Kennedy and the liberal wing have rewritten constitutional law to say that you have to be nicely enough adjusted to have a "rational appreciation" of the State's "rationale" for your execution. And who decides? Well, every expert under the sun has now been invited to testify. Juries get no vote on this subject — none. The judge who decides is quite likely not going to be the one who heard the trial evidence. But ultimately, it's the Nine Black Robes in Washington who get to decide, isn't it?

And they've expressly refused as part of this opinion to give the lower trial and appellate courts, state or federal, any more guidance for what the hell "rational appreciation" of the State's "rationale for execution" means.

I get no joy from executions. I handled capital cases as a Fifth Circuit law clerk 25 years ago. I've handled capital cases on a pro bono basis since then. There's nothing but tragedy and sadness here. The question is whether there's also justice or not.

I believe that even apart from its AEDPA holdings, Justice Kennedy's opinion in this case is by far the worst piece of SCOTUS death penalty jurisprudence ever written. No other case comes remotely close, and there are quite a few others that I have thought were pretty bad (including, actually, some that are perceived as pro-prosecution).

If you're genuinely big on protecting the rights of the acused, Pub_D, you'll figure out that you do yourself no favors by trying to ridicule, as bloodthirsty ghouls, those who believe in individual rights but nevertheless also believe in justice for victims and for society.
6.29.2007 9:52pm
Norman Yarvin (www):
Dave N, you're just rephrasing the idea, not explaining why it has even a shadow of sense. After the man is executed, he certainly won't know why it was done. Why does it matter whether he knew why, just before being executed? Yes, I know that the official reason is that it would be "cruel and unusual"l; but there are lots of other ways to interpret the Eighth Amendment, and someone must have chosen this way for some particular reason.
6.29.2007 11:55pm
Public_Defender (mail):
"one who was found sane"

Just to pick apart one part of your statement, saying that Stewart was "found sane" is a typical but misleading pro-death rhetorical trick. Legal sanity has little to do with true moral culpability.

Most dogs have the mental capacity to pass the legal sanity test (understand that society views an action as wrong). When a dog has misbehaved, it will frequently hide or cower, showing that it understands that what it did was wrong.

By saying that Stewart was "found sane," you are saying that he has the moral culpability of a dog.
6.30.2007 8:23am
Anderson (mail) (www):
By saying that Stewart was "found sane," you are saying that he has the moral culpability of a dog.

Since the commenter wants to see Panetti (right? not Stewart) put down like a dog, I guess that's good enough for him.

We've seen Alberto Gonzales's record of indifference to whether the death penalty is justly applied. How much of that stems from his being a Texan? The Texas appellate courts have stacked up quite a record at SCOTUS.
7.1.2007 12:30pm