Legislative Coming Attractions 2006: The Streamlined Procedures Act

Back in 1996, Congress passed (and President Clinton signed) the Antiterrorism and Effective Death Penalty Act of 1996, affectionately known as "AEDPA" by the habeas corpus/law clerk crowd. (Maybe not so affectionately.) The hope of the AEDPA "reform" was to eliminate delays in state death penalty cases caused by federal-court habeas review of state convictions; the statute does that in a number of ways, but chiefly by making the grounds on which habeas relief may be granted by federal courts much narrower than they had been under previous law. The idea was that by imposing a one-year statute of limitations and narrowing the grounds for the granting of relief the delays plaguing the system could be eliminated.

So, in the terms of the statute, "effective" means "quicker." Well, AEDPA was a complete disaster, if that was the goal. Since 1996, the median disposition time for a federal district court to review a state prisoner's habeas claims in a capital case has increased from about 13 months to more than 20 months, and, in a number of districts (especially districts in the Ninth Circuit, but not just there), the majority of capital habeas cases have been pending more than three years.

So, the legislative geniuses who brought us a more "effective" death penalty now want to "streamline" federal habeas procedures. Hence, the Streamlined Procedures Act (SPA). Now, regardless of what one thinks of the death penalty, simply on the question of efficiency and judicial resources, SPA is a terrible idea. Why?

Here's why. No matter how artfully one crafts the new legislation (and AEDPA is widely regarded as poorly drafted), new legislation always gives rise to litigation. Litigation tends to slow things down. (Indeed, that is the one thing that litigation is sure to do.) This is especially a problem in death penalty cases, because so many of these cases present related issues. Here's an example: Prisoner A, sentenced to death in California, brings a challenge to a particular aspect of the California death-penalty/sentencing statute. Now, this issue is not unique to Prisoner A's case, but is also an issue in the cases of Prisoners B-ZZ, who were all sentenced under the same scheme. Let's say that Prisoner A, first in the queue, raises this issue and wins in the district court. The state of California appeals to the Ninth Circuit (which is notoriously slow, and not just in death penalty cases; but to be fair, it does process something like one-quarter of all appeals filed in the U.S.). What do the other district judges with this issue--in the cases of Prisoners B-ZZ--now do? They stay their cases to await resolution of Prisoner A's appeal. Now, say that the Ninth Circuit takes eighteen months, from filing the appeal, through briefing, oral argument, and a published opinion, to decide the issue. That's eighteen months that nothing's happening in those other cases, eigtheen months of a completely "ineffective" death penalty. If the state loses and petitions for rehearing en banc, then the wheels really come off.

The same problems will bedevil SPA, which creates a bunch of new rules that will have to be litigated. My favorite aspect of the legislation is the provision that makes its terms applicable to pending cases. It's not hard to see the rather obvious retroactivity argument here. Regardless of whether that argument has merit, or a due process hook, it will have to be litigated, and that's probably the kind of issue that the Supreme Court will have to resolve. That means, in practical terms, that any efforts to apply SPA, in the short-term, to narrow habeas review for state prisoners will bring those cases to a screeching halt.

So I think (personal opinion time) that there's a good argument against SPA even if you think that the death penalty is made less effective by the extensive delays in habeas cases. Because (prediction) SPA won't lessen those delays, at least not in the short-run. Its possible effects in the long-run are harder to predict.

Btw, my guess is that the GOP leadership in Congress is going to clear the decks in the next few months and going to try to pass their entire legislative wish list before the summer, when the election season heats up. That would be the smart thing to do, if they are even a teensy bit worried about losing their majority in either the House or Senate. So my guess is that SPA will become law sometime before the end of April, although I don't have any actual information to back that up.

[Blogger managed to eat the end of this post the first time.]