Maura Dolan has an important report on the front page of Sunday’s Los Angeles Times about a federal law — the 1996 Antiterrorism and Effective Death Penalty Act — and the U.S. Supreme Court’s interpretations of the law that “have robbed federal judges of much of their power to overturn convictions obtained in state court, where the vast majority of criminal defendants are tried.”
The article quotes law review articles by two Ninth Circuit judges — Alex Kozinski and Stephen Reinhardt — critical of the resulting injustices. Judge Kozinski says that federal judges “now regularly have to stand by in impotent silence, even though it may appear to us that an innocent person has been convicted” and he calls for repeal of the law that is “cruel, unjust and unnecessary [and] that effectively removes federal judges as safeguards against miscarriages of justice.” Similarly, Judge Reinhardt argues that “[t]he collapse of habeas corpus as a remedy for even the most glaring of constitutional violations ranks among the greater wrongs of our legal era,” and he criticizes the U.S. Supreme Court’s interpretations of the legislation for creating “a twisted labyrinth of deliberately crafted legal obstacles that make it as difficult for habeas petitioners to succeed in pursuing the Writ as it would be for a Supreme Court Justice to strike out Babe Ruth, Joe DiMaggio, and Mickey Mantle in succession — even with the Chief Justice calling balls and strikes.” (Link added.)
Restrictions on federal habeas review have given state court criminal decisions — including those of the California Supreme Court — greater finality. In June, for example, the U.S. Supreme Court held the Ninth Circuit had improperly granted habeas relief for a prisoner whose death sentence the California high court had affirmed. Because “the safety net [of federal habeas review] is largely gone,” Dolan writes, “some state judges are calling for closer examination of criminal cases,” and she cites Justice Goodwin Liu as one who “has been trying to push his colleagues to examine trial mistakes more carefully. He has complained in dissents that the California court is out of the norm in upholding so many criminal convictions tainted by legal errors at trial and possible racial bias in jury selection.” (Links added.)
Equally disturbing is one reason given for limiting the federal courts’ powers. The article reports that a representative of a “law-and-order group[ ]” supportive of the current state of the law believes “[t]he California Supreme Court should have the last word because the justices serve at the will of the voters” and it quotes the representative as saying, “We can’t get rid of Reinhardt. We got rid of Rose Bird,” referring to the 1986 purge of three justices from the California Supreme Court.
Such attempts to intimidate state court judges who — unlike their federal counterparts — stand for election, are a threat to judicial independence. But, ironically, they also bolster the argument, made recently by at least one death row prisoner, that state court death sentences and affirmances are invalid because the impartiality of those courts’ judges is compromised by their fear of being voted out of office if they rule in favor of a capital defendant. The next brief including that claim could well include a section heading saying simply, “‘We can’t get rid of Reinhardt. We got rid of Rose Bird.'”