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The AEDPA: A Forgotten Catalyst in Mass Incarceration

by Dale Chappell

When we talk about things that fuel mass incarceration, the Antiterrorism and Effective Death Penalty Act (“AEDPA”) is rarely considered as one of the causes for the over-incarceration of U.S. residents. But take a closer look, and you’ll see that the AEDPA has played an integral role in keeping the nation’s prisons full and the prison-industry fat and happy. That’s because the AEDPA was purposely designed to prevent prisoners from challenging their convictions and sentences via habeas corpus in federal court, and that means prisoners serving wrongful and illegal sentences are forced to stay in prison to serve those sentences.

The AEDPA Wasn’t Needed

Have you ever wondered why the AEDPA was created by Congress? Well, so have many scholars and federal judges who have weighed in on the AEDPA and agreed that it wasn’t needed. Prior to President Bill Clinton signing the AEDPA into law in 1996, the federal courts had a good handle on limiting habeas corpus challenges by prisoners to their convictions and sentences. For example, the Supreme Court handed down numerous decisions in an effort to curb abuse of the Great Writ. The following is a list of some of those decisions:

• Wainwright v. Sykes, 433 U.S. 72 (1977) (must show “cause and prejudice” for federal habeas court to hear claims not properly raised earlier).

• Summer v. Mata, 449 U.S. 539 (1981) (deference must be afforded to state court decisions).

• Rose v. Lundy, 455 U.S. 509 (1982) (requiring “total exhaustion” of claims in state court before moving to federal court).

• Barefoot v. Estelle, 463 U.S. 880 (1983) (requiring a “substantial showing of the denial of a federal right” to appeal habeas denial).

• Teague v. Lane, 489 U.S. 288 (1989) (limiting retroactivity of new Supreme Court decisions on habeas review).

• McClesky v. Zant, 499 U.S. 467 (1991) (preventing more than one habeas petition without good cause).

• Keeney v. Tamayo-Reyes, 504 U.S. 1 (1992) (must show “cause and prejudice” to obtain evidentiary hearing in federal habeas court).

• Brecht v. Abrahamson, 507 U.S. 619 (1993) (establishing strict “substantial and injurious effect” standard of review for habeas review by federal court).

These are just some of the decisions handed down by the Supreme Court prior to the AEDPA to control abuse of habeas corpus by prisoners. While a Supreme Court decision is binding on all federal courts, the Court usually left some room for a judge’s discretion to grant habeas relief in deserving cases. And judicial decisions are always subject to change in order to adapt to the current judicial environment. Even the Supreme Court itself has overturned its decisions to better align with fundamental fairness or, God forbid, when the high court admits that it was wrong.

The AEDPA Removed a Judge’s Discretion to Grant Habeas Relief

The problem with Congress codifying the Supreme Court’s decisions limiting habeas relief, turning them into statutory mandates, is that it took away the discretion of federal judges in granting habeas relief to undo wrongful and illegal sentences. By making the pre-AEDPA restrictions into binding law, Congress trumped federal judges by taking their power away. Even if a federal judge wanted to grant habeas relief to a prisoner serving an illegal sentence, he can’t, thanks to the AEDPA.

Maybe Judge Henry Friendly was right when he said that habeas relief should be limited to only the rarest of cases. In his well-known Chicago Law Review article, “Is Innocence Irrelevant?,” he argued that habeas corpus should be an extraordinary remedy and that federal courts only “act as a safety net to catch the few truly innocent people who have slipped through the cracks.” He wrote this back in 1970, when the Supreme Court was expanding habeas relief in federal courts. Was he warning that opening the doors too wide would eventually prompt Congress to slam the door shut for everyone? Not exactly. But applying the clarifying effects of hindsight all these years later, it could be taken that way.

Actual-Innocence Trap

Sure, the AEDPA says it makes exceptions for those who are innocent of the crimes for which they were convicted. But the reality is that there are so many procedural obstacles that prisoners often cannot obtain habeas relief in actual-innocence cases. Even if the prisoner claiming actual innocence manages to get overcome all those obstacles, he still has one more major hurdle to clear: Deference. Under the AEDPA, a federal court must give deference to a state court’s decision, no matter how ridiculous it might seem, i.e., no “fair-minded jurist” would disagree with it. The Supreme Court says that’s a difficult thing to prove, and Congress designed it that way on purpose. See Harrington v. Richter, 562 U.S. 86 (2011).

Actual innocence under the AEDPA has lots of disclaimers, too. For example, in Velez Scott v. United States, 890 F.3d 1239 (11th Cir. 2018), the Eleventh Circuit ruled that a Brady error, which might have proved that the prisoner was actually innocent of his conviction, wasn’t enough to meet the actual-innocence exceptions under the AEDPA. In Brady v. Maryland, 373 U.S. 83 (1963), the Supreme Court held that when the prosecutor withholds favorable evidence from the defense, the defendant’s constitutional rights are violated. The Eleventh Circuit held in Velez Scott that because the Brady error actually occurred when the Government withheld the favorable evidence, the petitioner was too late under the AEDPA’s one-year limit—even though it was the Government’s fault. The insanity of this reasoning underscores the AEDPA as a catalyst fueling mass incarceration, keeping people in prison who probably shouldn’t be there.

Think about this disturbing fact. Ever since DNA evidence began exonerating innocent prisoners, The Innocence Project says that more than 2,000 of them have been released from prison, even from death row. But should this number be higher? DNA evidence didn’t become a reliable source of exonerations until after the AEDPA was enacted. How many prisoners have been denied habeas corpus relief despite DNA evidence showing they’re likely innocent of their conviction? The Bureau of Justice Statistics collects data on habeas petitions filed that are granted or denied but not about the substance of the claims made. Even if it did, a procedural dismissal of a habeas petition wouldn’t reach the merits of the claims anyway. So that data wouldn’t be helpful without a full-merits review by a habeas court. The AEDPA precludes any review of the merits if a procedural bar prevents relief.

Pro Se Prisoners Face Impossible Barriers Under the AEDPA

One thing the AEDPA did for sure was erect some major procedural barriers to habeas relief for pro se prisoners. That’s a major factor in the super-low success rate of habeas petitions because those petitions are almost always filed without the assistance of a lawyer. The AEDPA’s procedural bars make it too easy for a court to dismiss any hope for relief. While most of the procedural rules are “affirmative defenses” that the state or government must raise, it’s hard to find a prosecutor who would pass on the easy way to keep a person in prison, no matter how egregious the error is.

One of the easiest and most common procedural bars raised by prosecutors in response to a habeas petition is the AEDPA’s one-year time limit. State and federal prisoners get just one year to file for habeas relief. 28 U.S.C. §§ 2244(d)(1) and 2255(f). That clock, however, starts when the criminal judgment becomes “final.” If you think one year is enough time to file a habeas petition, you need to consider that after sentencing a prisoner is often shipped around and held for many months at various holding facilities and transfer centers before finally arriving at his destination prison. Once there, he has to wait for his legal papers to show up or wait for his lawyer to send them (often a busy public defender). Requests for legal papers by prisoners usually get ignored by lawyers, leaving prisoners with little to go on to establish their claims. By the time they get their claims together and the petition filed, that one-year clock (if the prisoner is even aware of it) has usually expired. If the prosecutor enforces the statute of limitations defense, the court will dismiss the petition without hearing the claims.

State prisoners also have to “properly” exhaust any remedies in state courts before filing for federal habeas relief. This means properly filing any appeals and properly going through the postconviction process in the state court system. One misstep and the federal court won’t hear the claims. Again, it’s the AEDPA’s procedural bars that often kill habeas petitions, not the claims themselves.

Under the AEDPA’s seemingly endless procedural obstacles, it’s rare that petitions even reach the merits stage. Even the ones filed by lawyers. For pro se filers, it’s almost unheard of. It doesn’t matter how strong the claims are. It doesn’t matter how “innocent” the person might be. It doesn’t matter how bad the prosecutor’s conduct was during the criminal proceedings. The AEDPA doesn’t care.

The Fallacy of Finality

The one-year limit was added to the AEDPA by lawmakers at the last minute and without any explanation. In the beginning, courts said it was to speed up the death penalty. That made sense, since the “E” in AEDPA promised an “Effective” death penalty. But when it quickly became clear that the AEDPA did nothing to speed up the death penalty—actually, the wait times on death row have doubled since the AEDPA became law—courts switched gears and began saying the one-year limit is to promote “finality” of criminal convictions. This is interesting since nowhere in the legislative history did Congress say this was the purpose of the time limit. In fact, the time limit was added without any discussion by lawmakers. No reason was given.

In reality, the AEDPA slows down the courts because of its shoddy drafting. Judges have to spend their time interpreting vague passages in the law that no two judges can agree on. In fact, judges have complained about this. The late Justice Antonin Scalia once remarked in open court about the
AEDPA, “Who is responsible for writing this?” It seems that Congress’ rush to erect obstacles to prisoners filing for relief from wrongful and illegal sentences in order to reduce the workload on the courts actually created more work for the judges. And the time limit also set up another time-waster for the courts: Prisoners have to file every claim imaginable in the petition because they only get one shot at relief and can’t file claims after the one-year limit, no matter how good they are.

Before the AEDPA, prisoners’ chances of habeas relief were dismal. After the AEDPA, the rate of success dropped to not even one half of one percent. There are so many procedural obstacles that courts rarely reach the merits of a prisoner’s claims. The numbers don’t lie: the rate of imprisonment before the AEDPA was 500 per 100,000 U.S. adults. After the AEDPA, the rate shot up to 700 per 100,000. The AEDPA continues to keep the prisons and the pockets of prison-industry investors full. 

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Related legal case

Harrington v. Richter

Supreme Court of the United States
562 U.S. ___; 131 S.Ct. 770; 178 L.Ed.2d 624; 2011 U.S. LEXIS 912

Kelly HARRINGTON, Warden, Petitioner,

No. 09-587.

Jan. 19, 2011.

Argued Oct. 12, 2010.

Decided Jan. 19, 2011.

Syllabus FN*

FN* The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Timber & Lumber Co., 200 U.S. 321, 337, 26 S.Ct. 282, 50 L.Ed. 499.

*1 In 1994, deputies called to drug dealer Johnson's California home found Johnson wounded and Klein fatally wounded. Johnson claimed that he was shot in his bedroom by respondent Richter's codefendant, Branscombe; that he found Klein on the living room couch; and that his gun safe, a pistol, and cash were missing. His account was corroborated by evidence at the scene, including, relevant here, spent shell casings, blood spatters, and blood pooled in the bedroom doorway. Investigators took a blood sample from a wall near the bedroom door, but not from the blood pool. A search of Richter's home turned up the safe and ammunition matching evidence at the scene. After his arrest on murder and other charges, Richter initially denied his involvement, but later admitted disposing of Johnson's and Branscombe's guns. The prosecution initially built its case on Johnson's testimony and the circumstantial evidence, but it adjusted its approach after Richter's counsel, in his opening statement, outlined the theory that Branscombe shot Johnson in self-defense and that Klein was killed in the crossfire in the bedroom doorway, and stressed the lack of forensic support for the prosecution's case. The prosecution then decided to call an expert in blood pattern evidence, who testified that it was unlikely that Klein had been shot outside the living room and then moved to the couch, and a serologist, who testified that the blood sample taken near the blood pool could be Johnson's but not Klein's. Under cross-examination, she conceded that she had not tested the sample for cross-contamination and that a degraded sample would make it difficult to tell if it had blood of Klein's type. Defense counsel called Richter to tell his conflicting version of events and called other witnesses to corroborate Richter's version. Richter was convicted and sentenced to life without parole. He later sought habeas relief from the California Supreme Court, asserting, inter alia, that his counsel provided ineffective assistance, see Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674, when he failed to present expert testimony on blood evidence, because it could have disclosed the blood pool's source and bolstered Richter's theory. He also offered affidavits from forensics experts to support his claim. The court denied the petition in a one-sentence summary order. Subsequently, he reasserted his state claims in a federal habeas petition. The District Court denied his petition. A Ninth Circuit panel affirmed, but the en banc court reversed. Initially it questioned whether 28 U.S.C. § 2254(d)-which, as amended by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), limits the availability of federal habeas relief for claims previously “adjudicated on the merits” in state court-applied to Richter's petition, since the State Supreme Court issued only a summary denial. But it found the state-court decision unreasonable anyway. In its view, trial counsel was deficient in failing to consult blood evidence experts in planning a trial strategy and in preparing to rebut expert evidence the prosecution might-and later did-offer.


*2 1. Section 2254(d) applies to Richter's petition, even though the state court's order was unaccompanied by an opinion explaining the court's reasoning. Pp. ---- - ----.

(a) By its terms, § 2254(d) bars relitigation of a claim “adjudicated on the merits” in state court unless, among other exceptions, the earlier state-court “decision” involved “an unreasonable application” of “clearly established Federal law, as determined by” this Court, § 2254(d)(1). Nothing in its text-which refers only to a “decision” resulting “from an adjudication”-requires a statement of reasons. Where the state-court decision has no explanation, the habeas petitioner must still show there was no reasonable basis for the state court to deny relief. There is no merit to the assertion that applying § 2254(d) when state courts issue summary rulings will encourage those courts to withhold explanations. The issuance of summary dispositions can enable state judiciaries to concentrate resources where most needed. Pp. ---- - ----.

(b) Nor is there merit to Richter's argument that § 2254(d) does not apply because the California Supreme Court did not say it was adjudicating his claim “on the merits.” When a state court has denied relief, adjudication on the merits can be presumed absent any contrary indication or state-law procedural principles. The presumption may be overcome by a more likely explanation for the state court's decision, but Richter does not make that showing here. Pp. ---- - ----.

2. Richter was not entitled to the habeas relief ordered by the Ninth Circuit. Pp. ---- - ----.

(a) That court failed to accord the required deference to the decision of a state court adjudicating the same claims later presented in the federal habeas petition. Its opinion shows an improper understanding of § 2254(d)'s unreasonableness standard and operation in the context of a Strickland claim. Asking whether the state court's application of Strickland 's standard was unreasonable is different from asking whether defense counsel's performance fell below that standard. Under AEDPA, a state court must be granted a deference and latitude that are not in operation in a case involving direct review under Strickland. A state court's determination that a claim lacks merit precludes federal habeas relief so long as “fair-minded jurists could disagree” on the correctness of that decision. Yarborough v. Alvarado, 541 U.S. 652, 664, 124 S.Ct. 2140, 158 L.Ed.2d 938. And the more general the rule being considered, “the more leeway courts have in reaching outcomes in case-by-case determinations.” Ibid. The Ninth Circuit explicitly conducted a de novo review and found a Strickland violation; it then declared without further explanation that the state court's contrary decision was unreasonable. But § 2254(d) requires a habeas court to determine what arguments or theories supported, or could have supported, the state-court decision; and then to ask whether it is possible fair-minded jurists could disagree that those arguments or theories are inconsistent with a prior decision of this Court. AEDPA's unreasonableness standard is not a test of the confidence of a federal habeas court in the conclusion it would reach as a de novo matter. Even a strong case for relief does not make the state court's contrary conclusion unreasonable. Section 2254(d) is designed to confirm that state courts are the principal forum for asserting constitutional challenges to state convictions. Pp. ---- - ----.

(b) The Ninth Circuit erred in concluding that Richter demonstrated an unreasonable application of Strickland by the state court. Pp. ---- - ----.

*3 (1) Richter could have secured relief in state court only by showing both that his counsel provided deficient assistance and that prejudice resulted. To be deficient, counsel's representation must have fallen “below an objective standard of reasonableness,” Strickland, 466 U.S., at 688; and there is a “strong presumption” that counsel's representation is within the “wide range” of reasonable professional assistance, id., at 689. The question is whether counsel made errors so fundamental that counsel was not functioning as the counsel guaranteed by the Sixth Amendment. Prejudice requires demonstrating “a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.” Id., at 694. “Surmounting Strickland 's high bar is never … easy.” Padilla v. Kentucky, 559 U.S.----, ----. Strickland can function as a way to escape rules of waiver and forfeiture. The question is whether an attorney's representation amounted to incompetence under prevailing professional norms, not whether it deviated from best practices or most common custom. Establishing that a state court's application of Strickland was unreasonable under § 2254(d) is even more difficult, since both standards are “highly deferential,” 466 U. S, at 689, and since Strickland's general standard has a substantial range of reasonable applications. The question under § 2254(d) is not whether counsel's actions were reasonable, but whether there is any reasonable argument that counsel satisfied Strickland's deferential standard. Pp. ---- - ----.

(2) The Ninth Circuit erred in holding that because Richter's attorney had not consulted forensic blood experts or introduced expert evidence, the State Supreme Court could not reasonably have concluded counsel provided adequate representation.

A state court could reasonably conclude that a competent attorney could elect a strategy that did not require using blood evidence experts. Rare are the situations in which the latitude counsel enjoys will be limited to any one technique or approach. There were any number of experts whose insight might have been useful to the defense. Counsel is entitled to balance limited resources in accord with effective trial tactics and strategies. In finding otherwise the Ninth Circuit failed to “reconstruct the circumstances of counsel's challenged conduct” and “evaluate the conduct from counsel's perspective at the time.” Strickland, supra, at 689. Given the many factual differences between the prosecution and defense versions of events, it was far from evident at the time of trial that the blood source was central to Richter's case. And relying on “the harsh light of hindsight” to cast doubt on a trial that took place over 15 years ago is precisely what Strickland and AEDPA seek to prevent. See Bell v. Cone, 535 U.S. 685, 702, 122 S.Ct. 1843, 152 L.Ed.2d 914. Even had the value of expert testimony been apparent, it would be reasonable to conclude that a competent attorney might elect not to use it here, where counsel had reason to question the truth of his client's account. Making blood evidence a central issue could also have led the prosecution to produce its own expert analysis, possibly destroying Richter's case, or distracted the jury with esoteric questions of forensic science. Defense counsel's opening statement may have inspired the prosecution to present forensic evidence, but that shows only that the defense strategy did not work out as well as hoped. In light of the record here there was no basis to rule that the state court's determination was unreasonable.

The Court of Appeals erred in dismissing such concern as an inaccurate account of counsel's actual thinking, since Strickland examined only the objective reasonableness of counsel's actions. As to whether counsel was constitutionally deficient for not preparing expert testimony as a response to the prosecution's, an attorney may not be faulted for a reasonable miscalculation or lack of foresight or for failing to prepare for remote possibilities. Here, even if counsel was mistaken, the prosecution itself did not expect to present forensic testimony until the eve of trial. Thus, it is at least debatable whether counsel's error was so fundamental as to call the trial's fairness into doubt. Even if counsel should have foreseen the prosecution's tactic, Richter would still need to show it was indisputable that Strickland required his attorney to rely on a rebuttal witness rather than on cross-examination to discredit the witnesses, but Strickland imposes no such requirement. And while it is possible an isolated error can constitute ineffective assistance if it is sufficiently egregious, it is difficult to establish ineffective assistance where counsel's overall performance reflects active and capable advocacy. Pp. ---- - ----.

*4 (3) The Ninth Circuit also erred in concluding that Richter had established prejudice under Strickland, which asks whether it is “reasonably likely” the verdict would have been different, 466 U.S., at 696, not whether a court can be certain counsel's performance had no effect on the outcome or that reasonable doubt might have been established had counsel acted differently. There must be a substantial likelihood of a different result. The State Supreme Court could have reasonably concluded that Richter's prejudice evidence fell short of this standard. His expert serology evidence established only a theoretical possibility of Klein's blood being in the blood pool; and at trial, defense counsel extracted a similar concession from the prosecution's expert. It was also reasonable to find Richter had not established prejudice given that he offered no evidence challenging other conclusions of the prosecution's experts, e.g., that the blood sample matched Johnson's blood type. There was, furthermore, sufficient conventional circumstantial evidence pointing to Richter's guilt, including, e.g., the items found at his home. Pp. ---- - ----.

578 F.3d 944, reversed and remanded.

KENNEDY, J., delivered the opinion of the Court, in which ROBERTS, C.J., and SCALIA, THOMAS, BREYER, ALITO, and SOTOMAYOR, JJ., joined. GINSBURG, J., filed an opinion concurring in the judgment. KAGAN, J., took no part in the consideration or decision of the case.

Harry J. Colombo, Sacramento, CA, for petitioner.

Clifford Gardner, San Francisco, CA, for respondent.

Edmund G. Brown Jr., Attorney General of California, Dane R. Gillette, Chief Assistant Attorney General, Donald E. De Nicola, Deputy State Solicitor General, Michael P. Farrell, Senior Assistant Attorney General, Ward A. Campbell, Supervising Deputy Attorney General, Harry Joseph Colombo, Counsel of Record, Deputy Attorney General, Sacramento, for Petitioner.

Cliff Gardner, Counsel of Record, Catherine White, Oakland, CA, Edward Swanson, Swanson and McNamara, San Francisco, CA, for Respondent.

Justice KENNEDY delivered the opinion of the Court.

*5 The writ of habeas corpus stands as a safeguard against imprisonment of those held in violation of the law. Judges must be vigilant and independent in reviewing petitions for the writ, a commitment that entails substantial judicial resources. Those resources are diminished and misspent, however, and confidence in the writ and the law it vindicates undermined, if there is judicial disregard for the sound and established principles that inform its proper issuance. That judicial disregard is inherent in the opinion of the Court of Appeals for the Ninth Circuit here under review. The Court of Appeals, in disagreement with the contrary conclusions of the Supreme Court of the State of California and of a United States District Court, ordered habeas corpus relief granted to set aside the conviction of Joshua Richter, respondent here. This was clear error.

Under 28 U.S.C. § 2254(d), the availability of federal habeas relief is limited with respect to claims previously “adjudicated on the merits” in state-court proceedings. The first inquiry this case presents is whether that pro-vision applies when state-court relief is denied without an accompanying statement of reasons. If it does, the question is whether the Court of Appeals adhered to the statute's terms, in this case as it relates to ineffective-assistance claims judged by the standard set forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). A second case decided today, Premo v. Moore, post, p. ___, presents similar issues. Here, as in that case, it is necessary to reverse the Court of Appeals for failing to accord required deference to the decision of a state court.


It is necessary to begin by discussing the details of a crime committed more than a decade and a half ago.


Sometime after midnight on December 20, 199



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