AEDPA undermined habeas corpus in several ways. First, it created numerous procedural obstacles that state prisoners must navigate almost always without counsel. Most habeas petitioners are poorly educated, many are mentally ill, and few are capable of effectively presenting their claims. The procedural obstacles created by AEDPA placed them at an even greater disadvantage. Second, AEDPA required federal courts to defer to state court rulings that wrongly interpret the U.S. Constitution as long as the rulings, however erroneous, are not unreasonable. And the Supreme Court has since made clear that very few state court mistakes are sufficiently erroneous to justify a federal court in treating them as unreasonable. Thus, federal courts must put their imprimatur on interpretations of the Constitution that are just plain wrong. Third, AEDPA barred federal district courts from granting relief to prisoners based on precedents set by courts of appeals or other district courts. Rather, federal district courts may grant habeas petitions only if the Supreme Court has weighed in on the issue in a “clearly established” determination, a vague and not well-defined phrase. To make matters worse, the Supreme Court has interpreted AEDPA rigidly, almost uniformly rejecting prisoners’ claims. Thus, many claimants whose constitutional rights have been violated are unable to obtain relief and remain in prison.
The reason that federal habeas review of state court convictions is so important is that federal courts have numerous institutional advantages. The most important of these is that, unlike most state court judges, federal judges do not have to run for reelection or stand for reappointment by other officials who must run for reelection. Many state judicial elections, including almost all state supreme court elections, have become hotly contested, intensely partisan, multimillion-dollar affairs focusing on whether the incumbent or the challenger is “soft on crime.” And electoral concerns have an impact on judges who understand that every criminal case that comes before them is a potential television attack ad. This sometimes makes it difficult for judges to protect defendants’ constitutional rights. In addition, many state courts have heavy caseloads and limited staff, and they operate within very conservative legal cultures. Thus, in the absence of meaningful federal habeas review, prisoners whose constitutional rights have been violated, many of whom are minorities, have no place to go and no chance of vindicating the rights of which they have been deprived.
For these reasons, it is essential that a future Congress repeal or substantially revise AEDPA. Short of this, there is no way to escape the tragic consequences that the virtual destruction of the once Great Writ has brought about.