Small Favors: Chapter 154 of the Antiterrorism and Effective Death Penalty Act, the States, and the Right to Counsel

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I. INTRODUCTION

When one has been threatened with a great injustice, one accepts a smaller as a favor.

Jane Welsh Carlyle, 19th-century Scottish poet(1)

On April 24, 1996, President Clinton signed Public Law 104-132 into effect as the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA).(2) This cumbersome title reflects the divided history and the purpose of the law. While the majority of the law is designed to provide federal law enforcement with increased powers to confront foreign and domestic terrorism in the aftermath of the Oklahoma City bombing, the law also contains provisions restricting habeas corpus which evolved from years of debate, scholarship, and legislation,(3) These habeas corpus reform provisions have been some of the most controversial aspects of the AEDPA. Condemned by many as draconian limitations on the abilities of prisoners to guarantee the constitutionality of their confinement or death sentence, they are lauded by others as a necessary and overdue step against duplicative and abusive litigation by condemned criminals.

In enacting this habeas corpus reform, Congress chose to make use of an innovative procedural device known as the state opt-in provisions. Contained in Chapter 154 of the AEDPA, Special Habeas Corpus Procedures in Capital Cases, these provisions mandate greater restrictions on federal habeas corpus review in exchange for appointing competent counsel to indigent capital defendants for state post-conviction review. Essentially, the opt-in provisions are a quid pro quo. If a state provides counsel, the opportunities of state prisoners for federal review are reduced, thus removing roadblocks to a state's effective and expeditious use of its death penalty.

This paper argues that the opt-in provisions are flawed and ensure finality at the cost of justice. Far from ensuring that prisoners receive qualified and skilled attorneys, the provisions expose prisoners to ineffective counsel without remedy or protections. Furthermore, the opt-in provisions are creating federal-state tensions as states seeking to opt in feel thwarted by the federal judiciary. This paper will explore these and other issues in several different ways. Part II is a comprehensive examination of the history and background of the opt-in provisions. This Part looks at the developments in and debate over habeas corpus and shows how this culminated in the Ad Hoc Committee on Federal Habeas Corpus in Capital Cases--the source of the opt-in provisions. This Part will also briefly review the legislative history to show how the recommendations of the Ad Hoc Committee became codified in the AEDPA. Part III reviews the litigation history of the opt-in provisions. To date, sixteen states have litigated their opt-in status, either through prisoner declaratory judgments against opt-in status or through normal habeas corpus review, and no state has qualified for the restrictions on federal habeas corpus review. This Part will look at these cases to show trends and themes in this litigation. Part IV is original research into state intent. The purpose of this section is to investigate whether states are still seeking opt-in status and, if so, by what means and why. Part V provides legal analysis and critique of the opt-in provisions given their history and the states' responses. This section will include both criticism and proposals for reform of the opt-in provisions.

II. ORIGINS: BACKGROUND AND HISTORY OF THE OPT-IN PROVISIONS

A. THE OPT-IN PROVISION MECHANISM AND THE AEDPA

The AEDPA is a major development in habeas corpus law within which the opt-in provisions operate. Before continuing with the analysis of the opt-in provisions, it is necessary to look at both the AEDPA and the opt-in provisions themselves.

The first major effect of the AEDPA is to establish a one-year period for filing a federal habeas corpus petition--the first statute of limitations on federal collateral review. …