In response to:
The Magna Carta Betrayed? from the February 11, 2016 issue
To the Editors:
“The Magna Carta Betrayed?” [NYR, February 11] is an attack on the Antiterrorism and Effective Death Penalty Act (AEDPA). It is written by a federal district court judge. One of the reasons for the act was that federal district court judges were using habeas corpus to set themselves up as super courts of appeal over state supreme courts. A federal district court judge might think that he was smarter, acting alone, in analyzing a case than five state supreme court justices, but that is not always the case.
In considering the death penalty, one cannot lose sight of what crime deserves it. When I was Arizona attorney general, one death penalty postponed on a legal technicality by the federal system involved a perpetrator who tied another man to a chair and (with an accomplice) tortured him for many hours before killing him. I will spare your readers the details because most people can’t bear to hear them.
One must also consider the families of victims. As attorney general, I spoke to organizations of families of victims, such as families of police officers killed in the line of duty, and parents of children killed in brutal crimes. I spent a lot of time listening. They need to see justice done promptly, and are victimized a second time by lengthy delays from federal habeas corpus. The average delay in the Ninth Circuit at the time was eighteen years. This imposes a lot of suffering on them.
When the author spoke of AEDPA enabling people to “be promptly executed” he must have imagined knowledgeable readers figuring he was kidding.
He also writes of people “factually innocent of the crime.” Some of AEDPA’s more important provisions have exceptions where there is a genuine issue of innocence. The more typical habeas case is the tough childhood defense. A court rules for the perpetrator on the grounds of ineffective assistance of counsel. The lawyer did not interview enough teachers and others from the perpetrator’s childhood to prove that he had diminished capacity and therefore less culpability, regardless of how brutal the crime.
I did not want to personally argue any death penalty cases unless I was certain of the guilt of the perpetrator. In one case, I persuaded the US Supreme Court to unanimously overrule the Ninth Circuit, which, using habeas, had granted an indefinite delay of execution of someone who had brutally killed someone in his home. The victim’s wife was also a victim of the endless federal delay. There was DNA on the floor that could not be tested in the techniques of the time. During the delay of many years, techniques improved, and my office went to court to have the DNA tested, which by then could be done.
The defense lawyer objected. His client was guilty.
Arizona Attorney General (Retired)
Jed S. Rakoff replies:
Mr. Horne defends the death penalty against robust federal habeas review on the grounds that certain crimes are so brutal, and the anguish they bring to families of the victims so intense, that prompt imposition of the death penalty by the states should not be stymied. No one could be more sensitive to both these concerns than this author, since my beloved older brother was bludgeoned to death at the age of forty-five, after which the murderer set fire to his apartment in an effort to conceal the crime. Although the culprit was caught, convicted, and imprisoned, my feelings of anger and loss remain unassuaged.
But it is just such emotions, which empathetic judges and jurors may feel almost as strongly as the victims’ families, that lead innocent defendants to be defectively tried and wrongly convicted. We cannot ignore the fact that, as a result of DNA testing alone, more than 335 persons previously found guilty of the most brutal crimes have now been exonerated. In most of these cases, juries had found the defendants guilty beyond a reasonable doubt and state appellate courts had affirmed the convictions, typically concluding that the evidence of guilt was “overwhelming” and any procedural error “harmless.” Often it was only as a result of federal habeas intervention that these defendants had not been executed when the definitive proof of their innocence emerged.
Nor is the problem limited to death penalty cases. In just this past year, according to The New York Times, “149 people convicted of crimes large and small—from capital murder to burglary—were exonerated.” One wonders how many other wrongfully convicted defendants remain in prison, or have gone to their execution, because of the limits that AEDPA and other such laws now place on federal habeas review.