AEDPA, the Power of Judicial Dissents, and the Reality of Troy Davis

This week, the New York Times reports that dissents are increasing in federal cases, based in large part upon judicial frustration with the Antiterrorism and Effective Death Penalty Act of 1996.   According to their investigation and research, this single statute has been the basis of 6 -24 dissents per year in federal death penalty appeals. 

What is the Antiterrorism and Effective Death Penalty Act of 1996?

The Antiterrorism and Effective Death Penalty Act of 1996 is a federal law that was passed by Congress in response to concerns that Death Row inmates were taking advantage of loopholes in the appeals process.  What AEDPA does to correct this concern is to put boundaries on what the federal appellate court justices can take into consideration when called upon to review a death penalty appeal.  The federal appellate courts must limit their review in state court cases where the death penalty has been imposed to certain specific areas. 

Specifically, AEDPA allows federal judges to grant relief in a death penalty case only if  the state court decision is found to be:


  1. contrary to, or involved an unreasonable application of clearly established federal law as determined by the Supreme Court of the United States; or

  2. based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding.


AEDPA does other things as well.  It bars certain habeas corpus petitions.  It cuts off the power of the U.S. Supreme Court from reviewing lower  federal court decisions denying an inmate permission to file a habeas corpus petition in certain circumstances.  It establishes specific review provisions in death penalty cases arising out of states that have set standards for performance (e.g., "death penalty qualified") on attorneys involved in representations at the penalty phase of a death case (the sentencing trial).   These are a few examples of the powerful impact AEDPA imposes upon capital punishment review nationally.

What's the Impact of All These Judicial Dissents?

Dissenting opinions ("Dissents") from justices of the U.S. Supreme Court are commonplace today -- sometimes short, sometimes long, they're always there to give further explanation as to the reasoning of the particular justice.  We've come to expect them, particularly on the big issues. 

Justice William O. Douglas loved dissenting opinions, for example, and wrote 486 of them (he also dissenting in another 309 cases, but didn't bother to write an opinion for them).  And, of particular import here, Justices Thurgood Marshall and William Brennan, Jr. became famous for their dissenting opinions in death penalty cases.   Both were adamently opposed to capital punishment, and used the opportunity offered by the dissenting opinion to offer eloquent and persuasive arguments against its legality.

And it's true that dissents can be used to persuade others.  Marshall and Brennan saw the power in dissenting, and the New York Times article points to the power of the growing number of federal appellate judges who are opposing the AEDPA via the tool of a dissenting opinion.  

Dissents are power, they give judicial voice to perceive injustice and persuade an alternative viewpoint, sometimes offering a solution or optional outcome. 

Bringing the Case Home -- This is Life or Death For Troy Davis

Earlier, we posted about Troy Davis and how Mr. Davis may well be an innocent man executed by the State of Georgia.  Right now, a second habeaspetition sits before the United States Supreme Court -- with an Eleventh Circuit Opinion denying Mr. Davis's requests and amici curaie supporting him growing by the day as well as a swelling public outcry by the likes of Pope Benedict, Georgia Governor Sonny Perdue, Rev. Al Sharpton, and former U.S. President Jimmy Carter.  

Dissent in Davis's case before the 11th Circuit

The Eleventh Circuit voted against Davis 2-1.  The majority opinion is based upon two AEDPA requirements, which were found not to be met by Davis.  Since Davis failed to meet these "gatekeeping requirements," his petition was rejected, preventing Troy Davis from getting that new trial. 

Rosemary Barkett filed a dissent.  In her opinion, Judge Barkett wrote:

 "[t]he majority takes the position that we cannot permit Davis to bring his evidence before the district court because our discretion to do so is constrained by AEDPA.  But AEDPA cannot possibly be applied when to do so would offend the Constitution and the fundamental concept of justice that an innocent man should not be executed."

The U.S. Supreme Court Has Davis's Life and the future of the AEDPA in its hands

How the U.S. Supreme Court decides to handle AEDPA in Mr. Davis's situation will determine whether or not Troy Davis dies.    Surely Judge Rosemary Barkett felt the importance of her words as she wrote her dissenting opinion -- but we don't know yet how persuasive Judge Barkett has been. 

The Supreme Court may well choose form over substance and let Troy Davis die rather than upset the apple cart of the AEDPA.  And, no matter how powerful a dissent from a United States Supreme Court Justice may be, it will be of cold comfort to Davis's family and friends if the High Court fails to grant Davis' request in its majority opinion.

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Death Row Inmate Troy Davis’ Defense Attorney Tom Dunn Gives Up Law, Starts Teaching Career | Terry Lenamon's Death Penalty Blog - October 21, 2009 11:53 AM
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House Bill 3986 - The Proposed Death Penalty Appeals Act and the Need to Include Adequate Funding for Indigent Defense Counsel | Terry Lenamon's Death Penalty Blog - December 22, 2009 9:20 AM
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