Members Only | June 24, 2022 | Reading Time: 5 minutes

Three ways SCOTUS put greater limits on habeas corpus this term

Evidently, innocence isn’t enough to stop executions.


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In this term, the Supreme court has issued three decisions that limit habeas corpus and the right to judicial review of unlawful detention. They treat the death penalty with a casualness that undermines the constitutional justifications for the punishment. 

While this extremely narrow view of habeas corpus is being pushed by the legally incoherent rightwing of the Supreme court, in this instance they are finding legislative support in a bipartisan piece of legislation called the Antiterrorism and Effective Death Penalty Act from 1996. 

The result is a procedural quagmire that’s more concerned with not clogging up the courts with habeas corpus petitions than with ensuring those who are executed are actually guilty.

The conservative wing of the Supreme Court seems hell-bent on twisting history to fit a particular rights-limiting agenda. 

The Antiterrorism and Effective Death Penalty Act  (AEDPA) was passed during the “tough on crime” era of mass incarceration after the high crime rates of the 1980s and the 1995 Oklahoma City bombing. 

It made the penalty harsher for a number of crimes, but it also limited the ability of federal courts to overrule state courts who had been considering the habeas corpus petitions of death row inmates. 

This was supposed to protect the public from domestic terrorism. But the only people it seems to have helped are federal judges who don’t want their dockets clogged with habeas corpus petitions.

The first high court case this term concerning the AEDPA was Brown v. Davenport. In it, the defendant was shackled during the trial. That was ruled prejudicial and unconstitutional in Deck v. Missouri in 2005. 

In Brown, the defendant was also shackled but behind a “privacy screen,” thus shielded from the jury. Jury members testified, however, that they heard the shackles. The majority opinion in Deck offered other reasons defendants couldn’t be shackled during trial, such as interfering with a defendant’s ability to communicate with counsel. 

However, for death row inmates to successfully use a habeas corpus petition, they have to prove harm was caused by the violation of their rights. (You’d think violating a defendant’s rights would be enough to satisfy harm but the Brecht v. Abrahamson test requires the violation have a “substantial and injurious effect or influence on the verdict.”) 

The Brown decision, written by Justice Neil Gorsuch, presumes harm was caused by the shackling during trial but still doesn’t grant relief. 


Gorsuch claims that for the defendant to get relief, they must satisfy the Brecht test for harm and the test for federal court intervention under the AEDPA. Federal courts can only consider a petitioner’s habeas corpus petition if the state court’s decision would be seen as prejudicial by “every fair-minded jurist” (emphasis is Gorsuch’s). 

So Gorsuch is saying that the federal court’s own judgment about the error is insufficient unless they could reasonably assume that all fair-minded jurists would agree with them. This is an impossibly high standard for judicial review that would require the state court’s mistakes to be utterly egregious to warrant federal consideration. 

The majority opinion in Brown v. Davenport set the stage for the following two cases concerning the AEDPA. It likely signals that this court will continue limiting the usefulness of habeas corpus petitions. 

It seems hell-bent on twisting history to fit a particular rights-limiting agenda. Gorsuch uses Brown to claim that for most of judicial history habeas corpus petitions were for challenging unfair detention by the crown, or the president in the US, not to “challenge a final judgment of conviction issued by a court of competent jurisdiction” until Brown v. Allen until 1953. He is claiming the intent of the AEDPA was to return the scope of habeas petitions to their previous more limited purpose.

In her snarky dissent, Justice Elena Kagan dismisses Gorsuch’s argument, calling the requirement that a case meet both tests a “pointless demand.” First, she asserts, the Brecht test (that harm is caused by the violation) is sufficient for federal intervention. She argues if a case meets the Brecht test it also meets the AEDPA test by definition because proving harm is more difficult. She cites two previous cases for evidence (Fry v. Pliler and Davis v. Ayala). 

“That is because, we have both times explained, the Brecht standard ‘obviously subsumes’ the ‘more liberal’ AEDPA one: If a defendant meets the former, he will ‘necessarily’ meet the latter too.” 

Kagan cites a number of cases where federal courts considered post-conviction detention with a habeas petition, but she also emphasizes the change to the Judiciary Act after the Civil War. 

The amended Judiciary Act expanded federal jurisdiction “to grant writs of habeas corpus in all cases where any person may be restrained of his or her liberty” in violation of the Constitution. (I added the emphasis because it’s clear the act meant to allow federal courts to consider petitions from both state and federal prisoners.) 

In Ex Parte Royall (1886), the court interpreted the new Judiciary Act to allow “a single [federal] judge” to free “a prisoner, after conviction in a State court,” using habeas if the prisoner was found unconstitutionally restrained. This precedent is directly on point to show the Judiciary Act meant to allow federal courts to apply habeas petitions to state prisoners seeking post-conviction relief. So it seems the conservative wing is playing selective citation with their history lessons.

The second case relying on the AEDPA this term was Shinn v. Ramirez which has now enshrined Scalia’s 1993 claim that innocence doesn’t necessarily stop the state from executing someone into case law. 

In Shinn, two death row prisoners sought relief in federal court with habeas petitions for ineffective post-conviction counsel so they could be allowed to present new evidence of innocence. Justice Clarence Thomas’ majority opinion recounts irrelevant details of the murders and emphasizes the importance of the finality of convictions. 

Eventually, he says that under the AEDPA, federal courts can’t hold evidentiary claims to consider ineffective counsel, especially because there isn’t a constitutional right to post-conviction counsel as there is for counsel at trial. In her dissent Justice Sonia Sotomayor called the majority opinion “perverse” and “illogical.” She said it flies in the face of precedent, particularly Martinez v. Ryan in 2012 which held that federal courts could intervene if a prisoner had ineffective counsel at the post conviction stage. 

This week the Supreme court issued its third case this term using the AEDPA to restrict the use of habeas petitions for people on death row.

In Shoop v. Twyford, an Ohio federal court ordered a prisoner be transported for neuroimaging to show evidence of a traumatic brain injury to challenge Twyford’s conviction. 

Writing for a 5-4 majority (Gorsuch joined the dissent), Roberts sided with the warden challenging the transfer order and once again used the AEDPA to argue the federal court shouldn’t have intervened. 

Roberts said the transfer order was to allow the prisoner to look for new evidence that a federal court couldn’t consider anyway under the AEDPA without proof that the state court had made a grievous error. 

A federal court “may never needlessly prolong a habeas case, particularly given the essential need to promote the finality of state convictions.” I wouldn’t think the possibility of new evidence was “needless” but apparently ensuring state convictions are final is more important than ensuring an innocent person isn’t executed.

Writing a year ago before these three decisions, Radley Balko argued that the Antiterrorism and Effective Death Penalty Act was the worst criminal justice law of the past 30 years and should be repealed. 

While it’s clear the current conservative wing of the court is happy to twist history and precedent to fit their agenda, we should at least try to remove their legal justification for executing innocent people. 

As Balko notes, the AEDPA was passed right before DNA testing became common, leading to thousands of post conviction exonerations. With new scientific tools for exoneration consistently on the horizon, it’s more important than ever to ensure death row inmates have every tool at their disposal to prove their innocence, particularly habeas relief. 

The Supreme Court agreed with the state’s attorney in Shinn v. Ramirez, that “innocence isn’t enough” for a federal court to overturn a state’s conviction. 

We must urge Congress to repeal the AEDPA and enshrine “innocence” as totally sufficient for federal intervention.

Mia Brett, PhD, is the Editorial Board's legal historian. She lives with her gorgeous dog, Tchotchke. You can find her @queenmab87.

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